Selecting the proper fiduciaries in estate planning is an important aspect of the planning process. When an individual creates a Last Will or Trust, the Executor or Trustee is the person who is given the responsibility to carry out the creator’s plan and protect the creator’s assets.
The fiduciary has many different responsibilities which include safeguarding and investing assets and paying income and principal to named beneficiaries. A person who is nominated and acts as an executor or trustee owes fiduciary duties to the beneficiaries. Sometimes the interests of the beneficiaries may be in conflict. For instance, an income beneficiary of a trust will want the trustee to invest in high income producing assets while a beneficiary who has an interest in the principal or trust remainder may want investments that produce lower income but higher long-term growth. The trustee must balance the interests of the beneficiaries and often is guided by the terms of the Will or Trust agreement regarding the manner in which he proceeds.New York estate planning lawyers are aware that Will and Trust papers should be clear and concise and provide unambiguous guidance to a fiduciary regarding the creator’s intent. When selecting a trustee or any fiduciary there are no hard and fast rules. The individuals selected should be viewed as trustworthy and fair and sensitive to the intent of the creator and the needs of the beneficiaries. Also, provisions should always be made in the Will or Trust for the appointment of successor fiduciaries in the event the primary person selected cannot serve due to a disability or death or a decision not to act. It is a good idea to make certain that the persons selected will agree to accept their nomination.
Of course, there is no foolproof way to insure that the selected executor or trustee will not breach his fiduciary duties or act improperly. Such improprieties by a fiduciary can result in Surrogate’s Court litigation. Surrogate’s Court Procedure Act Sections 711 and 719 provide procedures for the removal of a fiduciary. I have represented numerous clients in connection with fiduciary removal proceedings. These litigations can be complicated and the guidance of a New York estate lawyer is helpful.
A recent article by Maureen Milford in The News Journal on June 13, 2015 entitled Du Pont heiress paints unflattering picture of Wilmington Trust, depicts the issues presented when a trust beneficiary and trustee are involved in controversy. As discussed in the article, a DuPont family member asked a Delaware Court to remove a corporate trustee due to allegations of unjust enrichment, improper investments and other wrongful acts.
I have worked closely with individuals in estate planning regarding the selection of executors and trustees. I have also assisted clients when issues have arisen regarding the proper conduct of an Executor or Trustee and a breach of fiduciary duty. If you have any questions regarding any of these issues, please call me for a free discussion.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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