If someone named you in his or her last will and testament as executor of his or her Colorado estate and you accepted this responsibility, that makes you a fiduciary. As FindLaw explains, what this means is that throughout the estate’s probate process you must act in the best interests of both the estate and its heirs.
Because you are a fiduciary, you have the duty and responsibility to put forth your best efforts to protect and manage the estate’s assets until you ultimately distribute them to the heirs. But no one holds you to the standard of perfection. You will not breach your fiduciary duties if you make one or more inadvertent mistakes during the course of carrying out your responsibilities. You breach them only by deliberately doing something that works to the detriment of the estate or its heirs.
Fiduciary breach examples
Examples of fiduciary breach include the following:
- Knowingly working for your own benefit rather than for the benefit of the estate and its heirs
- Knowingly “playing favorites” among the heirs
- Knowingly giving the heirs false, inadequate or misleading information
- Knowingly taking an action that will negatively affect the estate and its heirs
Fiduciary breach proof
If one or more of the heirs believe(s) that you somehow breached your fiduciary duties and sue you therefor, (s)he or they must prove the following in order to prevail:
- That the testator’s will named you as estate executor
- That said will specified what duties you would perform as executor
- That you knowingly failed to perform one or more of these duties by deliberately doing something counter to the estate’s best interests or that of its heirs
- That due to said breach, the plaintiff(s), i.e., the estate and/or its heirs suing you, suffered compensable monetary damages
You need to know that should the plaintiff(s) win the fiduciary breach lawsuit, the court will hold you personally responsible for reimbursing the plaintiff(s) for the amount of damages (s)he, it or they suffered. It likely will also require you to pay interest on that amount from the date of your breach.
This is general educational information and not intended to provide legal advice.