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Fiduciary Liability

Family and litigation never mix well. That is why the selection of a good executor or trustee (collectively “Fiduciary”) is such an important piece of any estate plan. The Fiduciary can ensure that the estate or trust is administered smoothly and in accordance with the deceased wishes, or they can screw up the most beautiful, intricately drafted estate plans out there.

However, a Fiduciary's power in Trusts and Estates does not come without a burden. They have duties that they must perform or they may be liable to the beneficiaries of the estate or trust. By accepting the mantle of an executor you are accepting the liability that comes with it. You have a duty imposed by law to settle the estate as expeditiously as possible, without sacrificing the value of the estate.[i] Therefore, by accepting the position of executor you are accepting the responsibility to administer the estate as quickly as possible and you have a duty to reasonably preserve value of the estate.

In the event that the fiduciaries fail to carry out the express wishes of the Will or trust, or have breached their fiduciary duty in some other way, they may themselves be sued personally for damages. [ii] This can be as simple as failing to maintain proper accounting and documentation for the estate or failing to sell property for fair market value. If a fiduciary lets the accounting process get away from them, they may have to pay for the damage out of their own pocket.

Before you accept the mantle of a fiduciary, you need to understand your role. You have a duty to get the job done in an expeditious fashion, not just when it is convenient for you. From a practical standpoint, you also need to know the family dynamic that you are stepping into. Is it a large family with many beneficiaries? Is someone being disinherited? Is a beneficiary drug abusers or spend thrifts? Are you stepping into some sort of family feud? All of these could show you that there is the potential that you may be sued or challenged in your role as a fiduciary, whether or not you do your job perfectly.

Everyone needs a good Fiduciary, and if you can serve well in that role I do not want to scare you off. However, too often we accept the role of executor or trustee without fully understanding the implications of that decision. The executor position is one of service, though too many executors assume that simply because they are in the position of executor they have all of the power. If you abuse the power entrusted to you as executor you are opening yourself up for a suit.

[i] O.C.G.A. § 53-7-1(a).

[ii] O.C.G.A. § 53-7-54.

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