Wills are a pivotal part of estate planning. However, so too are the people involved in implementing the written instructions in these documents. The person tasked with implementing a will is referred to as the executor.
The executor is a fiduciary. This means that they must always act in the best interests of the beneficiaries of the estate. Outlined below are some examples of executor breaches of fiduciary duties.
Self-profiting
While an executor can be paid a fee, this must be separate from the proceeds of the estate. Assets in a will should go to the beneficiaries as instructed.
When an executor abuses their position and uses assets to make money for themself, this is called self-profiting. Self-profiting is a serious breach of fiduciary duty.
Executor negligence
The executor has to be meticulous in terms of managing assets, communicating with beneficiaries and keeping records. In some cases, they may be responsible for selling assets and settling or collecting debts. They cannot simply “forget” to carry out these duties. If they have to sell assets, then they must conduct due diligence. Selling assets at a disproportionately low price may be classed as negligence, which is a breach of fiduciary duty.
Showing favoritism
The executor must remain impartial. They cannot veer away from instructions because they favor one beneficiary over another. Favoritism is a breach of fiduciary duty that can give rise to legal challenges.
If you are concerned about the conduct of an executor, then you may be able to challenge their position in court. This is a big decision and it is important to be armed with as much legal information as possible.