Estate and Probate Attorney in Cincinnati Ohio » fiduciary

Actions against the Executor/Administrator

admin — Tue, 29 Mar 2011 09:02:09 +0000

The executor, administrator and trustee are also called fiduciaries. This is because they owe the estate, trust, and the beneficiaries of the estate or trust a fiduciary duty to act in the best interest of the estate, trust, and the beneficiaries. This is the highest levels of legal duty. The fiduciary acts with the same regard as they would if it was their own estate or trust. The beneficiaries can bring an action to remove the fiduciary and to recover money under the following:

Delay in the administration
Mismanagement of the estate or trust affairs
Self dealing – using assets for their own benefit
Breach of a fiduciary duty
Breach of loyalty
Failure to communicate to the beneficiaries

Liabilities of the Executor/Administrator

admin — Tue, 29 Mar 2011 08:40:54 +0000

The executor/administrator can be removed by the Court for failure to perform such duties. They can also be subject to possible civil and criminal penalties for improper conversion of estate property.

The executor/administrator is also responsible for filing estate tax returns and income tax returns for the decedent and the estate. They can be held personally responsible for their failure to file these returns.

In addition, they owe the beneficiaries of the estate a fiduciary duty. In law, this is the highest duty owed to another. The executor has a duty to protect, manage, and care for the estate assets as if the assets were his own. If the executor/administrator is not careful and dilligent, he or she can breach the fiduciary duty owed to the beneficiary and be personally responsible. For example, a house is worth $150,000. The executor fails to get it appraised and sells it for $100,000. He could be liable for the $50,000 in lost value.

What Is a Last Will And Testament?

admin — Tue, 29 Mar 2011 08:23:14 +0000

A last will and testament is a legal document that identifies where your assets go once you have passed away. There are three main questions answered in a will. First, what happens to your assets when you die? Second, who is the executor of your estate? Third, who will be the legal guardians for your minor children?

In your will, you can identify where your property goes upon your passing. You can be specific as to which assets passes to which beneficiary. For example, “I want my house on Main Street to go to my brother, Steve”. You can also be general as in “The remainder of my estate shall be distributed equally to my two children”. You can create second levels of beneficiary such as “I want my Procter and Gamble stock to go to my sister, Betty if living and if not to my nephew, Tom”.

The executor named in a will is the person or entity that will conduct business on behalf of your estate. They are appointed by the Probate Court and will have legal authority to sell you assets, pay your bills, file your taxes, and to make distributions as indicated in your will. The executor can be a person like your spouse, child, or brother. The executor can also be a bank or Trust company. The executor has a fiduciary duty to follow the terms of your will and Probate Court supervises the process.

The guardian named in your will becomes responsible for your children who are under the age of 18. The guardian exercises parental control and has the same parental power as if they were in fact the parent. In Ohio you may name a parent, sibling, or friend not related to you or the child. Ohio allows out of state guardians to be appointed.