Breach of fiduciary duty

My brother, executor, waited over 2 1/2
months to open probate on our moms estate.
Now he realizes all the benefiaries have to
pay taxes, insurance, etc to maintain the
estate. The delay prevented us from putting
the house up for sale and is costing us
thousands. Now he is asking us to pay
over850 each every month till the house is
sold. It could have been sold by now if he
didnt delay. What can i do?

Asked on July 2, 2016 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A fiduciary has to act towards the property, assets, etc. he is overseeing as a reasonable person would look after his own assets. This does not mean that he has to be perfect or is penalized for any delays or suboptimal decisions or even mistakes, since even prudent reasonable persons do things wrong about property and investments; but it does mean that he has to at least be "reasonable." If under the circumstances, his delay was not reasonable (i.e. no reasonable person would have delayed in that way), he can be held liable for the costs or losses he caused the beneficiaries.  If you feel this was the case, you would file a lawsuit in chancery or probate court for an "accounting": for the court to require the trustee to account for his actions and, if not reasonable, to potentially reimburse the estate and/or beneficiaries for the losses thereby suffered.

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