Advising trustees, executors and agents on fiduciary obligations in California.
The purpose of this article is to provide a brief and general overview of fiduciary duties to help you determine whether you may want to schedule a consultation to learn if we might be of assistance to those who believe that the violation of such duties have caused them damage. This article is by no means a complete list of the duties of any fiduciary.
Black’s Law Dictionary defines that one is acting in a “Fiduciary Capacity” when “the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.”
Mr. Wittick’s expertise in this area of law is confined to the fiduciaries within the field of estate planning, trust and probate law which would encompass the duties of trustees, personal representatives, conservators, agents, or guardians. This is significant because Mr. Wittick has approximately 17 years of experience representing these individuals who, in large part, are unaware of their duties which, in many cases, can result in their personal liability. Estate planning is a wonderful benefit to all concerned if the above fiduciaries act in compliance with their duties but, unfortunately, many of them, who probably have not been counseled properly and may not be represented by counsel, feel they can act as they alone see fit, resulting in petitions from beneficiaries, heard in probate court that was sought to be avoided by the drafting of the original estate plan.
Duties of Trustees (of any trust)
- Exercise Reasonable Care
- Administer Trust according to its terms
- Keep Beneficiaries informed and respond to reasonable requests for information
- Account to certain beneficiaries
- Confidentiality
- Delegate only certain actions
- Loyalty to beneficiaries and to not self deal in assets
- Treat all beneficiaries impartially
- Comply with prudent investor rule if have duty to invest and manage assets
Personal Representatives (includes executors and administrators in probate proceeding)
The personal representative is required to sign an acknowledgment of receipt of a summary of the “Duties and Liabilities of Personal Representative,” under California Probate Code §8404.
- Exercise Ordinary Care and Diligence
- Collect, Manage, Protect and Preserve the Estate’s Assets
- Maintain proper insurance
- Invest cash in interest bearing accounts
- File a change of ownership statement with county assessor regarding real property
- Collect debts and notify creditors
- Determine the value of the estate’s property
- File Inventory and Appraisal of estate property with the court
- File all tax returns and pay taxes
- Keep records including an accounting that will be reviewed by the court
- Distribute assets to heirs/beneficiaries according to law/the will
Conservators (of any conservatorship proceeding)
All conservators have the duties of a trustee. Probate Code § 2101. In addition thereto:
- Conservatorships of the Person
- Care for, take custody and control of the person of the conservatee (disabled person)
- Take charge of the education of the conservatee
- Fix the residence of the conservatee
- Make health care decisions for conservatee who lacks capacity to give informed consent to medical treatment unless another is agent under valid advance health care directive
- Conservatorship of the Estate
- All duties under California Rule of Court Rule 7.1059
- Exercise Ordinary Care and Diligence in the management and control of the estate
- Apply income from the estate to the support, maintenance and education of the conservatee and to those entitled to support from the conservatee
- File all tax returns and pay all tax
Agents (of a power of attorney)
- Power of attorney for assets
- Exercise prudence in dealing with property of another
- Act solely in interests of principal
- Keep principal’s property separate
- Communicate with and follow instructions of principal
- Keep records and account in special circumstance
- Advance Health Care Directive
- Act in accordance with principal’s instructions or best interests
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