Advising Fiduciaries (Personal Representative, Administrator or Successor Trustee)

A Personal Representative, Administrator or Successor Trustee is a fiduciary, who must act with the highest faithfulness and honor in the sole interests of the beneficiaries without conflict of interest and in accordance with the decedent’s intent as expressed in a Will or trust agreement if there is one. In the probate process, you cannot substitute your own judgment for the decedent’s intent. In any case, there is an overriding “prudent person” standard by which your administration will be judged. If a beneficiary believes you are not administering the estate or trust in a manner consistent with the governing instrument and your fiduciary duties that person can bring a petition in court to require you to present an accounting and/or have you removed and replaced. The court in Washington has wide discretion in such cases to award attorney’s fees to one or the other party. Although you generally are not personally responsible for the expenses of administration, the court can order to make up losses it determines were attributable to your failure to meet the applicable fiduciary standard, including the attorney fees of the moving party. There are also certain circumstances where you can be held personally liable by the IRS or Washington Department of Revenue if the estate or trust does not pay its taxes. In extreme cases there can even be criminal liability. The professionals at Lyons Sullivan regularly provide legal advice to fiduciaries about how best to fulfill these duties in the course of the post-mortem administration of an estate or trust.