While drafting a will, trust, or other estate document may seem overwhelming and intimidating, hiring an attorney and understanding their responsibilities will lessen the load and the fiduciary burdens during a time of loss. It is important to understand the fiduciary responsibilities of your attorney, understand what constitutes malpractice, and know what ethical violations may arise. Equally, it is just as important to understand the fiduciary responsibilities of trustees and executors if you are the recipient of a trust, and have full knowledge of what to do if breaches in that trust occur.
The responsibility of creating a will and a living trust lies in the hands of the descendant’s attorney. The attorney will create a will or document that will dictate how the distribution of funds and property will occur after the death of the descendant. The grantor may choose to create a trust which will give control of such funds or property to a “trustee” whose job will be to manage these funds until they can be passed on to the inheritor. A living trust is simply a trust that is created while the decedent is still alive.
Certain ethical violations may arise which cause the inheritor to file a malpractice lawsuit. Examples of these ethical violations include but are not limited to, missing funds as a result of a dispute of professional fees, failure to file documents, an inability to guard property, misrepresentation, non-professional conduct, conflict of interest, or a failure or inability to communicate with either the recipient or the descendant. For example, in the Michigan case of Mieras vs. DeBona, the inheritors claimed the attorney who drafted the decedent’s will failed to execute the will in care of the intent of the deceased. In this case, the court found in favor of the attorney, as the inheritors used outside sources to prove the will was not executed as the deceased wished.
Similarly, in the Michigan case of Bullis vs. Downes, the family of the deceased made an identical claim. However, the judge found many inconsistencies occurred within the will, so he found in favor of the inheritors.
The executor of a will is the person to execute the wishes of a will heir or beneficiary. Their fiduciary responsibilities are to collect estate assets, file the decedent’s will in court, and to prepare and file tax returns. They must also gather information regarding the value of the property and satisfy the debts of the descendant. If a trust is created, the fiduciary responsibilities will be put into the hands of a trustee. The trustee will create a bank account that will transfer to the beneficiary as detailed in the will of the decedent. They will safe-keep the funds for the inheritor and distribute those funds appropriately.
Breaches of trust an inheritor may encounter with a trustee or executor are if either profit from their position in a way not set by a judge of the court, failure to keep accounts or records, not preserving capital equally between beneficiaries, or at all, and not consulting the needs or wishes of the family before acting.
While trusting an attorney in such matters can feel overwhelming, it is important to understand what power they have in such matters, and that hiring someone to fulfill these needs will reduce the burden of the family members after the decedent has passed. Dying intestate or dying without a will can result in the state deciding how your property will be distributed. The family members may have no decision as to who will access the funds of the deceased or how they will be disbursed, and the case could end up in probate court indefinitely. While probate laws may mirror the wishes of the deceased, potential beneficiaries such as life partners, charities, and persons not related to the deceased may not receive the funds initially intended for them.