What is a fiduciary?

On Behalf of | Aug 8, 2019 | Executor Or Conservator, Negligence By A Trustee

When a California resident creates a will that outlines the guidelines that should be followed to distribute one’s assets and estate, there must be someone on the other end who will follow these directions to the letter. This is where an executor or personal representative comes in. He or she is responsible for settling the decedent’s estate according to their directions. The person can appoint someone on their own or the court will appoint someone if no one has been appointed. Not only does this individual have to settle all their debts, but they also have to distribute what is left of the estate to the descendants.

An executor is just one form of a fiduciary relationship between two parties. A fiduciary is someone who has the power to act on another’s behalf, honestly and loyalty. That means a fiduciary must set aside his or her personal motivations and act with the highest standard of care for those being represented. A fiduciary relationship does not only have to exist after someone passes away-it can be with anyone who has been hired to act in another’s best interests.

Trustees are also considered fiduciaries. When one creates a living trust, someone else is usually appointed as a trustee to manage the trust in accordance with one’s wishes in the trust arrangement. In an irrevocable living trust, people act as their own trustee until the pass away, after which a successor trustee acts in accordance with the directions left behind. The trustee’s fiduciary responsibility to the beneficiaries does not cease upon the person’s death-it shifts to those who benefit from the estate.

Breaching a fiduciary duty is against the law and it is possible to hold a fiduciary liable, personally and civilly for their behavior. Negligence by a trustee, executor or conservator is a serious matter that has legal repercussions and an experienced attorney can discuss options on how to pursue them.