David Howard Goldberg, P.L.

Who will hold fiduciary duty in relation to your estate?

As you consider your estate plan, you may realize that you have a number of positions to which you could appoint individuals. These positions can range from executor of your estate to guardian of your children, and you certainly want to make sure that you appoint the right person for each role.

The individuals acting in these roles have what is known as fiduciary duties. This term means that any appointed person must act honestly and in a trustworthy manner while wielding the power he or she receives. If any fiduciary breaches his or her duty, serious consequences could arise.

Types of fiduciaries

Individuals with fiduciary duties are often referred to as fiduciaries. Your estate plan may involve a number of fiduciaries who have different obligations to which they must attend. Some examples of fiduciaries and their roles include the following:

  • Executor: The executor of your estate will have the responsibility of settling your final affairs in the manner you dictate in your will. This person will also have to protect and distribute your assets, address creditor claims, and contact beneficiaries, to whom he or she also has a fiduciary duty.
  • Health care agent: As part of your estate plan, you could appoint a person to make medical decisions on your behalf in the event that you cannot do so for yourself. The agent's fiduciary responsibility relates to making sure others follow your wishes for care.
  • Guardian: If you have minor children, you will certainly want to appoint a guardian in your will to care for your kids in the event of your passing or incapacitation. The fiduciary's duties will relate to caring for your children and making decisions to their benefit.
  • Financial professionals: You may also want to consult with financial professionals as you go through the planning process so that you better understand your estate. Though you are not appointing these individuals to a position within your estate, they still have a fiduciary duty to help you make informed decisions and to give reliable advice.

When naming fiduciaries, you may decide to name the same person to multiple roles or choose to appoint multiple parties. You may even find it useful to appoint alternate candidates in the event that your first choices cannot act in the necessary capacity.

Your legal counsel

It is wise to enlist the help of an attorney during the estate planning process in order to make sure that you understand your legal options and the decisions that you make. This legal professional will also have the fiduciary duty to protect your estate and ensure that others follow your wishes.

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