Breach of Fiduciary Duty in Estate Planning and Administration: What You Can Do

The death of a loved one or a business partner can be difficult. The administration of a large estate can add to that difficulty. Often the duty of settling the estate and distributing the assets falls to a fiduciary such as an attorney, a trustee, a personal representative, an administrator or an executor. That fiduciary holds a position of trust and is responsible for holding and managing property that belongs to the beneficiaries.

With this position of trust comes certain legal obligations that are owed to the estate’s beneficiaries such as the duties of care and loyalty.

In the context of being an executor or administrator, a fiduciary duty is a legal obligation to act in the best interest of the beneficiaries of the estate. Illinois law imposes various responsibilities and duties on these individuals, including:

  • Acting in the grantor’s and beneficiary’s best interests
  • Acting loyally and uphold a duty of care
  • Avoiding conflicts of interest
  • Abstaining from engaging in self-dealing (i.e. taking actions that personally benefit the trustee or executor at the expense of or contrary to the best interest of the beneficiaries)
  • Avoiding favoring one beneficiary over another
  • Investing the estate’s assets to maintain or increase their value
  • Distributing estate assets to the intended beneficiaries correctly and in a timely manner

When an executor or administrator violates these duties, it may be necessary to file a legal action to recover financial losses and hold the fiduciary liable for the damage caused by the breach. Fiduciary duty breaches in estate planning or administration can take many forms. Those most commonly litigated include allegations of:

  • Misappropriating the assets of the estate or trust
  • Commingling assets of the trust or estate with personal assets
  • Transferring or using assets for personal gain
  • Withholding estate or trust assets from named beneficiaries
  • Delaying the distribution of property
  • Mishandling the property held in trust
  • Neglecting the trust or estate leading to loss of value of the assets
  • Failing to disclose relevant information to the beneficiaries
  • Misrepresenting facts or the condition of the estate or trust
  • Engaging in fraudulent activity
  • Failing to provide an accounting to the beneficiaries

If the court finds the executor or administrator guilty of breach of fiduciary duty, the court can order various remedies based on the type of breach and other contributing factors. The court could require the executor or administrator to return or forego any fees to which they might otherwise be entitled. Illinois law also grants the court the power to remove an executor or administrator for a breach of fiduciary duty.

If you believe that the executor or administrator of an estate has breached their fiduciary duties, it is important to enlist the services of an experienced breach of fiduciary duty attorney to review your legal options. Our Chicago breach of fiduciary duty and business litigation attorneys have defended and prosecuted breach of fiduciary duty, shareholder oppression, and business divorce lawsuits for more than three decades. In recognition of their stellar track record and experience, Super Lawyers named fiduciary duty attorneys Peter Lubin and Patrick Austermuehle a Super Lawyer and Rising Star respectively in the Categories of Business Litigation, Class Action, and Consumer Rights Litigation. We handle high-stakes breach of fiduciary duty lawsuits and emergency business litigation involving injunctions, TROS, and declaratory judgments in a variety of corporate disputes. If you’d like to discuss how the experienced Illinois breach of fiduciary duty attorneys at Lubin Austermuehle, P.C. can help, we would like to hear from you. To set up a consultation with one of our Chicago business attorneys and Chicago trial lawyers, please call us locally at 630-333-0333 or contact us online.


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