Probate litigation can occur due to a breach of fiduciary duty

On Behalf of | Oct 2, 2019 | Litigation

As a San Diego attorney, you always want to do your best for your clients. In some cases, that may mean referring your clients to another attorney in your area because you do not handle their specific type of case or cannot take on the case at the current time.

Though you have experience in estate planning and feel confident in helping interested parties get their affairs in order, you may not take on probate litigation cases. As a result, if a client or a family member of a former client finds an issue with a probate case that may require litigation, you may feel the need to pass the case along rather than take it on yourself.

Issues with an executor

While you undoubtedly help each client make the best choices possible when it comes to naming an executor and appointing individuals to other roles, you do not have a final say in who is chosen. After all, you do not personally know your clients’ family or friends. Unfortunately, some individuals may not choose the most trustworthy individuals, and problems with the executor could result after a person’s passing.

In particular, an executor could breach his or her fiduciary duty to the estate and its beneficiaries. A breach of this duty could occur if the executor carries out any of the following actions:

  • Making risky investments on in the name of the estate
  • Mixing the estate funds with personal funds
  • Not following the details of the will or the decedent’s other wishes
  • Using estate assets for personal gain
  • Withholding information from the estate’s beneficiaries
  • Paying him or herself an unreasonable amount for serving as executor

If a beneficiary or another person with legal standing believes that the executor of an estate has breached his or her fiduciary duty, that person could file a lawsuit against the executor. In order for a lawsuit to be successful, the person filing suit would need to prove that the estate suffered losses and the beneficiaries did not receive their rightful inheritances as a result.

A complicated pursuit

As a legal professional, you understand how complex litigation can be, and your firm may not handle this particular type of probate case or you may simply have an overwhelming caseload as it is. Fortunately, you can provide a referral to another attorney experienced in this area of law.


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