If your family relies on a trust or guardianship to provide for a loved one, or if a deceased relative’s estate is in the process of distribution, your inheritance, and sometimes your livelihood, can depend on someone else’s work. When the estate assets don’t add up you may be left with less than you had hoped. Find out what you can do to protect your family’s assets, and remove a trustee or personal representative that isn’t living up to their role.
Who Controls Estate Assets
Who controls your estate’s assets -- the money and property available to support your loved one -- depends on the status of the loved one in question, and the documents they, or their parents, put together with an estate planning attorney. Depending on the situation, the person signing off on payments may be a:
Guardian of the Property (sometimes called a Conservator) -- in cases of a minor or a living, incapacitated adult
Personal Representative (formerly called an Executor) -- in cases where a loved one has died with or without a Will and a probate becomes necessary
Trustee -- in cases where your loved one established a revocable or irrevocable trust during their lifetime.
The names for these people may be different, but their jobs are very similar. The guardian, personal representative, executor, or trustee in charge of your estate’s assets has the task of managing and distributing those assets to support the person’s health and well-being while they are alive, and according to their wishes after that person has passed away.
When the Trustee Beneficiary Relationship Breaks Down
Because they have control over your family funds, these trustees and administrators all have a “fiduciary” duty to the beneficiaries in their care. A fiduciary duty is a legal obligation to:
Keep accountings for all the estate’s assets, liabilities, and distributions
Use good faith to fulfill the terms of their appointment
Put the beneficiaries’ needs before their own
Avoid playing favorites among beneficiaries
Protect the estate’s assets
Control expenses related to the estate assets
Keep the beneficiaries informed about the state of their accounts
In most cases, the Florida probate court will appoint a family member to oversee the distribution of the estate or provide for a loved one’s care. With family members involved, there is always a chance that the trustee beneficiary relationship will break down, or the person appointed won’t be up to managing the financial needs of the estate. Guardians or personal representatives may show favoritism among siblings or cousins, or may have different priorities for an incapacitated person’s care than that person expressed while they were still healthy. Regular accounting reports to beneficiaries or the court may go missing, or they may show that an estate’s assets don’t add up. Generally speaking, the trustee, guardian, or executor may simply not be up to the task.
Professional trust administrators, hired by the family, generally make fewer mistakes in trust accounting and ensuring the estate’s assets add up properly. However, the performance of these duties can sometimes feel cold or automatic to family members in their grief. A trustee relationship with these administrative firms can sometimes put family members at odds with the appointed administrator over a loved one’s intentions or well-being. Relatives may feel that a trustee is being too stingy or unreasonably denying requests for their loved one’s care or support. In rare cases, they may still find access to information on the family estate is hard to come by in a professional setting. This may be a sign that the normal fiduciary relationship has been compromised.
Options for Protecting Florida Estate Assets
It can be hard to make the decision, but sometimes the need to protect your estate’s assets means you will need to step in and make a change to who is in charge of your family finances. This won’t automatically cause hard feelings among your relatives. The trustee or executor may even be happy to turn over the work of managing the estate’s assets over to someone else. Depending on the circumstances, you may have a number of options to protect yourself and your family’s inheritance:
A trustee is free to resign from their position. This starts by completing a trustee resignation form. Florida trustees generally must provide 30 days’ notice to all beneficiaries, the living settlor (the person who created the trust), and co-trustees before they resign. However, a Florida probate judge can also approve a trustee resignation and issue orders to place conditions that protect the trust.
Petition for Substitute Guardian or Personal Representative
When the person in charge of the estate’s assets was appointed by a judge, that judge can also remove the person and substitute someone else. This most often happens in guardianship and complex estate administration cases, where the person named in the deceased’s Will did not realize the extent of the work they had signed up for. Any interested party can petition the court to have an unfit guardian or executor removed and a new person designated. But to have that petition granted, you will either need the administrator’s consent, or you will have to show that they have breached their fiduciary duty.
Removing an Administrator for Breach of Fiduciary Duty
When the administrator is benefiting from their role they may not be willing to step down, even when accounting shows they are losing the family money. In those cases, you and your family members may need to file suit for breach of their fiduciary duty. In addition to removing the trustee or personal representative from their position, this probate lawsuit can compensate your family for the money it lost under the administrator’s care. With the help of an experienced probate lawyer, you may be able to remove the administrator, replace them with someone you trust to handle your family’s affairs, and be compensated for money the trustee or executor illegally took, or caused the estate to lose, in their role as administrator.
Most fiduciary lawsuits start by digging into books to see where, and why, the estate’s assets don’t add up. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate your estate’s accountings, identify the breaches in fiduciary duty, and decide if there are grounds to file a lawsuit against the trustee or administrator. Whether the guardian wants to step down, or the trustee is hiding what they have done, we can help set things right. Contact us here or call 352-559-9828 to get help today.