The Role of a Court appointed executor of a probate estate or of a Trustee acting under a Trust document is called a fiduciary position.

A fiduciary has a great deal of responsibility to carry-out the duties assigned by the Will or Trust document, in addition to those duties imposed by state law. When someone acting as a fiduciary fails to fulfill his or her obligations, whether intentionally or unintentionally, that person has breached his or her fiduciary duty. A fiduciary breach of duty could result in personal liability for any damage resulting from the breach.

Duty of Impartiality: A fiduciary is required to carry-out his or her duties without favoring any one person or group over another. In many cases, a fiduciary will also be a beneficiary under a Will or Trust, and will often be related to or personally know the other beneficiaries. These types of personal involvements and relationships often make it challenging for a fiduciary to “stay neutral.” Litigated matters involving breach of the duty of impartiality typically involve allegations of unequal distributions, self-dealing transactions, and improper use of information for the benefit of one person or group.

Duty to Administer Document as Written: A fiduciary is strictly required to follow the directions set forth in a Will or Trust document as that document is written. In some cases, an executor or Trustee will choose to ignore those directions and instead refuse to make distributions or carry-out some other express term of Will or Trust document. There may be valid and defensible reasons for those actions: for example when a beneficiary would be unable to handle a distribution due to illness or disability; or when a fiduciary and the beneficiaries all agree on an alternate course of action, which does not alter the material purpose for which the original document was established. In other cases, a fiduciary failing to administer the document as written is grounds for litigation because that failure damages the interest of a beneficiary, or the probate estate or Trust as a whole.