Probate & Fiduciaries: FAQ

What is a fiduciary and fiduciary duty?

A fiduciary is a person or entity with a legal and ethical obligation to act in the best interests of another party or in the case of probate, the estate. This obligation is known as a fiduciary duty, and it requires the fiduciary to put the interests of the other party/estate ahead of their own.

If you have been named a fiduciary, you now must act on behalf of another person and in their best interest.

Not only are you expected to carry out these duties, you are expected to carry them out with the highest level of integrity possible. You must be careful not to create conflicts of interest and maximize the benefit to the person you’re acting on behalf of as much as possible. Fiduciary duty can get tricky if these responsibilities directly conflict with your interests or beliefs.

Who is the Petitioner and who should be the Personal Representative?

The Petitioner refers to the person filing the petition with the court. The petition documents typically ask the court to appoint a personal representative (Administrator or Executor) of the Estate. Usually the petitioner is also the individual seeking appointment.

If the decedent passed with a Will (also known as Testate), it's very likely that the Will will name a proposed Executor. If there is a named Executor, this individual has priority and would need to sign a renunciation if anyone else were to be appointed.

If the decedent passed without a Will (Intestate), the next of kin have priority to be appointed. Usually, the consent of all individuals of equal or higher priority is required.

What are the primary duties of a Personal Representative?

In addition to the Personal Representative’s Fiduciary Duty to act in the estate's best interest, each state has guidelines and duties for the personal representative. 

While these guidelines and duties vary by state, typically, the primary duties are to: 

  • Protect and preserve the assets of the estate
  • Prepare an Inventory of the assets of the estate 
  • Open an Estate Account and transfer all cash assets to this account 
  • Notify heirs, creditors, and other interested parties
  • Pay all debts of the decedent 
  • Pay any decedent’s taxes
  • Pay any estate taxes 
  • Distribute the assets appropriately

For more information about the duties specific to your probate state, review the Administrative Duties document available in the administration section of your probate dashboard.

What is a Personal Representative’s compensation?

Personal Representative’s Compensation (or Statutory Compensation) is compensation to the Personal Representative(s) from the estate for their time administering the estate. 

Calculation of this compensation varies by state but is often a percentage of the estate’s total value. 

This compensation is separate from any reimbursements for estate expenses paid by the representative, and can be waived. 

Check out our article How much does the executor of a will get paid? for more information.

What happens if the executor is not available or willing to act?

If the executor nominated in a will is unable or willing to act, the probate court will typically appoint an alternative executor to administer the estate. The court will usually give preference to a person or entity named as an alternate executor in the will itself or to a close relative of the deceased person. If someone other than an executor is nominated in the will acts, they are considered an Administrator with Will Annexed.

What is a Fiduciary Bond?

A fiduciary bond, also commonly referred to as a probate bond or estate bond, is a type of legal tool that protects beneficiaries, heirs, and creditors if a fiduciary doesn’t act with integrity or fails to carry out their duties. 

Probate Courts often require any person fulfilling a fiduciary role on behalf of another person or party to post a fiduciary bond. If a fiduciary fails to fulfill their duties, they become financially liable for any claims filed against the bond.

The cost of a probate bond depends on the size of the estate and the amount of coverage that’s required. In most cases, the Probate Court will require that the fiduciary bond covers any non-real property assets that will be under the control of the fiduciary. The average fiduciary bond premium is a few percentage points of the covered amount. 

Do I need an Attorney to probate an Estate?

In most states, hiring an Attorney is not necessary to probate an Estate.

Texas and Iowa legally require an Attorney to probate an Estate. An Attorney is also legally required in Florida for Estates that have two or more heirs and hold over $75,000 in non Homestead (home) assets.  We currently offer Attorney Support for probate plans in the following states:

  • California
  • Texas
  • Oklahoma
  • New York
  • South Carolina
  • Minnesota

What happens if an Attorney refuses to give the Executor/Administrator the Will?

This situation is fairly common - In some cases, an Attorney will only give the original Will they drafted if you hire them for the Probate process.

That being said, many states have standard petitions to order the Attorney to relinquish the Will. This legally requires the Attorney to provide the Will to the Executor or Administrator. 

Was this article helpful?
0 out of 0 found this helpful