Law Office of Brendan P. Kearse
48 Wall Street
New York, NY 10005
Ph: (212) 425-6244
Breach of Fiduciary Duty Actions
A Fiduciary (a broad category that includes Executors, Administrators, Trustees, Guardians, and Attorneys-in-Fact under a Power of Attorney) has a duty to act with prudence and loyalty to anyone legally interested (e.g. current beneficiaries, remainder beneficiaries, and creditors) in the property the Fiduciary is managing for them.
A Fiduciary does not always live up to this standard and may diverge from it by perhaps refusing to communicate with a beneficiary, refusing to deliver property to which a beneficiary is entitled, refusing to abide by the terms of a Will or Trust, or even acting negligently or fraudulently in the management and administration of the property.
Conversely, interested parties can sometimes be unjustly disgruntled with a Fiduciary’s management and administration of an estate or trust even where a Fiduciary has diligently and providently performed their role. The Fiduciary may in fact be justified in their acts that are seemingly contrary to an interested party’s stake in the estate or trust.
Our office represents both Fiduciaries and Beneficiaries in ensuring that an Estate or Trust is properly administered consistent with the law's high standards. We can also pursue judicial intervention to help resolve disputes between a Fiduciary and interested parties.
Types of Legal Proceeedings that may be Brought Against a Fiduciary:
Seeking information about an estate – Perhaps a Fiduciary has not been candid about his/her acts in administering an estate or trusts. A judicial proceeding may be necessary to force the Fiduciary to comply and divulge the information you seek.
Compelling the Fiduciary to Have Property Delivered – If you are a creditor or beneficiary under an estate and you have not received the property that is due to you, a proceeding may be necessary to compel the fiduciary to turn over that property. Conversely, if you are a Fiduciary, there may be an issue as to whether a creditor’s claim is valid or if it is the proper time to deliver property to a beneficiary, regardless of possible entitlement.
Resolving Disputes Amongst Fiduciaries – Trusts and Estates often have multiple Fiduciaries (some estates and trusts even require it). Two heads are not always better than one, and Fiduciaries often disagree on even basic aspects of the administration of an Estate or Trust. If these disputes cannot be resolved, a Court proceeding may be initiated to help resolve them.
Removing of Fiduciary – If an Executor’s or Trustee’s acts starkly diverge from the standard of care to which a Fiduciary is legally held, by for instance violating the terms of a Will or Trust, wasting or mismanaging assets, or failing to file an account when one is requested by an interested party, a proceeding may be brought to have them removed.
Compelling an Accounting – A party with a legal interest in an estate or trust (e.g. a beneficiary) has the right for a detailed account of the Fiduciary’s acts. The aim of an Accounting action is to obtain a complete overview of the Executor’s or Trustee’s acts, and based on that information to determine if the Executor or Trustee has acted appropriately. The account will include information such as: assets collected, expenses paid, how the assets were invested (if invested at all), gains and losses incurred, distributions made to beneficiaries and creditors, a calculation of the fiduciary’s commissions, income tax and estate tax payments, etc. If it is found that the fiduciary did not perform up to the required standard and the estate was damaged because of it, the fiduciary may be held personally liable for the resulting loss or may be removed or denied part or all of the usual commission.