Fiduciary Appointments
Fiduciary Appointments is an area of our practice in which we help assist you in becoming a fiduciary for a probate or a trust estate or an agent under a Durable Power of Attorney.
When a person dies and their estate must be administered through the probate process, a fiduciary known as a Personal Representative must be appointed by the local probate court and given the legal authority to act on behalf of the deceased person. Oftentimes, the person to be appointed has been nominated by the deceased person in his or her Last Will and Testament. Other times, however, when a person dies without a Will, a determination must be made as to who can or should be appointed their Personal Representative to handle their probate administration. Under these circ*mstances, the appointment may be more complicated, and it may result in a contested matter.
When a person has a Trust and the person named as the trustee under the Trust dies or becomes incapacitated, a successor trustee must be appointed. Most often, as with a Last Will, the Trust Agreement names the person who is to step in and handle the trust administration after the initial trustee can no longer serve. The appointment of the successor trustee is guided by the Trust Agreement and also by state law. Sometimes, the appointment of a successor trustee is not clearly defined, or issues arise that necessitate a legal proceeding to appoint a successor trustee.
With regard to a Durable Power of Attorney, often an agent appointed under the Power must provide an affidavit or certification in order to act on behalf of the person who granted the Power of Attorney. And, in all cases, an agent needs legal advice about their duties and responsibilities, and what they can and cannot do under the Durable Power of Attorney.
Sometimes more problematic issues arise with a Fiduciary Appointment. These may include mismanagement or misappropriation of funds, a fiduciary’s failure to act in accordance with written direction in a Will or Trust, the fiduciary’s failure to account or unwillingness to provide information to those entitled to the information. Many times, these fiduciary problems can be resolved with legal representation. Sometimes, they require a court action to compel a fiduciary to act as they should.
Whether you need to be appointed Personal Representative of a deceased’s estate, need direction on how to be appointed the successor trustee under a trust, or must provide written certification in order to act under a Durable Power of Attorney, it is important that you obtain legal advice before you take on the fiduciary role. Any person appointed a fiduciary such as personal representative, a trustee or agent under a Durable Power of Attorney has a legal duty to exercise reasonable care, skill, and caution. They owe duties of loyalty and fairness to other people, even those who have conflicting interests with the fiduciary. And, in many fiduciary appointment cases, there are time-frames within which certain actions must be taken and legal notices that must be given to certain persons.
Our firm can assist you with being appointed Personal Representative of your loved one’s probate estate or represent you in a contested probate appointment case. Our firm can also assist with the appointment of a trustee. We can guide you through your duties as an agent under a Durable Power of Attorney. Any person taking on the position of a fiduciary should obtain legal advice and guidance before they act to ensure that they are acting within the standards and bounds of the law. And, if you are the beneficiary of an estate, a trust or are concerned about an agent under a Durable Power of Attorney, we can assist you with problems that you may be having with a fiduciary.
