Fiduciary Duty Concept Written on A Paper

Breaches of Fiduciary Duty in Estate Administration 

Russell Manning Attorney Jan. 24, 2023

If you’re a beneficiary to a loved one’s will or trust and you suspect malfeasance by the executor or trustee of the estate, what are your options? Can you have the person removed and replaced? 

A last will and testament typically names a personal representative to oversee the administration of the estate when the grantor of the will passes on. The probate court will then appoint that person executor of the estate. If the will is silent on naming a personal representative, or the person named cannot or will not serve, the court will appoint an administrator, usually from among family members. 

A trust will name a successor trustee to carry out the same estate administration functions as an executor, but proceedings will take place outside of probate court. Generally, the trust document will contain provisions on removing or replacing a trustee, but even if the document is silent, Texas law allows for the removal of a trustee, as well as an executor. 

If you feel your loved one’s estate is being mismanaged and the executor or trustee has breached their fiduciary duty in or around Corpus Christi, Texas, contact Russell Manning Attorney at Law. I have more than three decades’ experience in handling estate administration disputes and helping beneficiaries hold the executor or trustee to their ethical and legal standards. 

I proudly serve clients throughout South Texas and the Coastal Bend Area, including the counties of Bee, Kleberg, Nueces, Live Oak, Victoria, and more. 

Fiduciary Duty and Estate Administration 

A person named executor or trustee has a fiduciary duty to carry out their estate administration duties in the best interest of the beneficiaries of the will or trust. The duties of an executor for a will and of a trustee for a living trust are fairly parallel except that an executor is supervised by a probate court and the trustee is generally not. 

With or without the watchful supervisor of a probate judge, however, both executor and trustee must act with honesty and integrity and never deceive anyone, whether creditors, beneficiaries, heirs, or the court. They must also avoid any conflicts of interest, such as taking actions that will benefit themselves over others, for example, by personally enriching themselves (though they are entitled to compensation as spelled out in the will or trust).  

Both the executor and trustee must manage and safeguard the assets named in the will or transferred into the trust. They must also carry out the wishes of the grantor or settlor of the document in distributing assets to named recipients. 

What If There Is a Breach of Fiduciary Duty? 

Beneficiaries may have disagreements with trustees and executors over various issues, including communications, but a breach of fiduciary duty rises to a higher level.  

A breach might involve selling off assets and siphoning some of the profits into a personal account – or commingling assets. A breach might also be evident if the executor or trustee doesn’t carry out the distribution of assets as directed in the will or trust.  

In some cases, the executor or trustee may have exerted pressure on the grantor to favor that person over others; in other words, rigged the legal document in their favor through undue influence.  

In a probate proceeding, a beneficiary can petition the probate court to review the actions of the executor. If the court finds a breach of fiduciary duty, it can remove the executor and name a new one. It can also levy fines and force the executor to pay back ill-begotten funds. Criminal charges may also be possible. 

A trustee can also be removed, according to Texas law, by similarly filing a petition with the probate court in the county where the settlor passed away. Though trusts are usually administered outside of probate court, the court still has jurisdiction if disputes arise. The trust document itself will usually spell out other procedures for challenging or replacing a trustee. 

It is also possible to file a personal lawsuit against an executor or trustee. The main criterion is to have substantiating evidence that a breach of fiduciary duty has taken place. For this, you will need to guidance and counsel of an experienced probate and estate administration attorney. 

Rely on Legal Support Throughout the Administration Process 

If you have questions or concerns about the administration of the will or trust of your deceased loved one, seek legal counsel immediately. Some issues can be resolved through negotiations, but if a breach of fiduciary duty arises, then further action such as a petition for removal may be in order. Your attorney can help you assess and resolve the situation. 

Through my three decades-plus experience in probate and estate administration matters, I have encountered just about every dispute and breach possible. I will meet with you and discuss your options if you suspect something is amiss in the administration of your loved one’s estate. Reach out immediately to Russell Manning Attorney at Law. I serve clients throughout South Texas.