After an individual passes away in Mississippi, certain fiduciary responsibilities are designated to the executor, the trustee(s) of an estate, and the probate lawyer if hired.
Together, they must ensure that the wishes of the deceased are carried out and manage the estate administration process on behalf of the beneficiaries.
Most estates in Mississippi are subject to probate before assets can be distributed to the heirs, a process that may require the assistance of a probate lawyer to complete. Let’s take a closer look at the fiduciary duties of probate lawyers, executors, and trustees.
What is probate?
Probate is a legal procedure whereby the Mississippi courts provide permission for the assets of deceased individuals to pass to their chosen heirs.
Not all assets are subject to probate. Careful estate planning enables some individuals to pass certain assets to their heirs without the need for probate. An estate planning lawyer can outline the regulations and processes for handling different types of property in Mississippi.
If probate is necessary, the process can be complex and time-consuming, especially for large estates. However, with competent estate planning, a capable executor, and the expertise of a probate lawyer, the process is often a formality.
What is the role of a probate lawyer?
While legal assistance is not always necessary when executing an estate, those with large estates to administrate or who require assistance with the legal documentation and court procedures often benefit from the help of a probate lawyer.
Understanding the roles and fiduciary duties of the executor and probate attorney can help prevent unnecessary conflicts between beneficiaries and other interested parties.
First and foremost, the executor has a responsibility to act in the best interests of the estate’s heirs. By appointing a probate lawyer, that lawyer usually takes on special fiduciary obligations towards the executor as well as the special client-attorney relationship guaranteeing confidential communications.
The probate attorney must prepare legal documentation, communicate with the executor, and assist in identifying and valuing assets. The lawyer may also assist in paying estate debts and taxes, distributing assets, and resolving disputes.
Assisting in conduct that is discovered to be criminal or fraudulent—or not in the best interests of the beneficiaries—would be a breach of a probate lawyer’s obligations.
What are the fiduciary duties of the executor of an estate?
The executor (sometimes called the “administrator” or “personal representative”) is a person or institution responsible for managing the administration of the estate.
Executors must usually apply for probate—with or without the assistance of a probate lawyer—before distributing assets according to the wishes of the deceased.
The executor has several important obligations when administering an estate:
- Duty to communicate: notifying the heirs of key developments with the estate administration process, providing copies of the inventory and court filings, etc.
- Duty to treat all beneficiaries equally: distributing estate funds according to the will without favoring one beneficiary over another.
- Duty to account: providing regular estate accountings, offering explanations for any funds paid into or out of the estate accounts.
- Duty of confidentiality: keeping details related to the estate and its heirs confidential.
- Duty to exercise due care and diligence: managing the estate assets prudently and avoiding actions that could put the estate at risk.
What are the fiduciary duties of the trustee(s) of an estate?
Trustees of estates manage and distribute assets in trusts on behalf of the beneficiaries named in the will. Similar to executors, trustees owe a fiduciary duty to the beneficiaries and must carry out some important duties.
First, depending on the trust type, trustees must invest the trust assets prudently, with a diverse portfolio that has the best possible chance of generating income and growing in value. Speculative investments should be avoided and assets preserved for the benefit of the beneficiaries, with any risks mitigated.
At the appropriate time according to the terms of the trust agreement, the trust assets should be distributed to the beneficiaries in line with the wishes of the grantor of the trust.
What are the fiduciary duties of the probate lawyer?
Probate lawyers generally don’t need to meet the same fiduciary duty to the estate heirs as the executor of the estate—but they do have a fiduciary duty to the executor.
In a few states, because the executor owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the executor, the duty flows from the executor to the lawyer.
Most states, including Mississippi, view the fiduciary duty owed by the executor to the heirs as unique from the fiduciary duty owed by the lawyer to the executor.
However, according to case law, an attorney for the estate may, under certain circumstances, owe a fiduciary duty to a beneficiary of the estate based on the same considerations relevant to determining fiduciary duties to all third parties.
What are the main remedies for breach of fiduciary duty?
While probate lawyers are not normally held to the same standards of fiduciary duty towards the beneficiaries of an estate, if an executor or trustee breaches their fiduciary duties, a qualified probate lawyer may be able to help beneficiaries seek appropriate remedies.
The main legal remedies for breach of fiduciary duty include:
- Removal of the executor or trustee: beneficiaries can petition the court to remove the executor or trustee.
- Restitution: the beneficiaries may be able to recover losses incurred because of the executor or trustee’s breach of duty.
- Punitive damages: beneficiaries may seek punitive damages from the executor or trustee due to gross negligence or willful misconduct.
Executors and trustees must understand their own fiduciary duties as well as the role and duties of a probate lawyer if legal assistance is sought during the estate administration process.
If you need the assistance of a probate lawyer in the Biloxi area of Mississippi, contact Rushing & Guice, PLLC for legal advice and assistance.
