Because estate planning is critical to managing your financial legacy, and because fiduciaries play a central role in the estate planning process, dealing with fiduciary misconduct or ineptitude can throw a fine plan for the future off course. Having a skilled, knowledgeable estate planning attorney can help you avoid such a disaster or cope with one that has already taken place by facilitating fiduciary removal.
If you reside in Virginia or Maryland, contacting Randall J. Borden is a good idea. His legal skills have been refined over decades of successful practice and he is well-prepared to assist you in getting your affairs back in order. He knows precisely what steps to take to remove a problematic fiduciary and find an appropriate replacement.
Fiduciaries & Their Role in Estate Planning
Speaking generally, fiduciaries are those who take on the duties of managing another person’s finances in one way or another. In estate planning, fiduciary roles are built into the structure since both personal representatives (executors) who administer the estate and trustees who administer the funds in a trust are fiduciaries.
In all cases, those who serve in a fiduciary role — whether they are working as professionals, e.g. lawyers, accountants, or financial advisors, or have agreed to help a relative or friend with banking or investing — make a legal commitment to work in the best interests of their beneficiary. By law, fiduciaries can be held accountable for either mismanagement or intentional misconduct.
What Fiduciaries Are Expected to Do
This role of fiduciary encompasses a range of responsibilities, including:
- Asset Management: Making prudent investment decisions to increase the estate’s or trust’s value.
- Duty of Loyalty: Acting in the best interest of the beneficiary at all times, and avoiding conflicts of interest.
- Record Keeping and Transparency: Maintaining accurate financial records and reporting all pertinent information to the beneficiary.
- Distributing Assets: Ensuring assets are distributed according to the terms of the trust or will.
There are several penalties for dereliction of fiduciary duties, including monetary penalties, compensatory damages, and suspension or revocation of licenses, but the one we are concerned with here is fiduciary removal. This involves removing the person acting as a fiduciary from their appointed role due to their ineffectual or malevolent behavior.
How Estate Planning Clients Interact With Fiduciaries
At Randall J. Borden, Attorney at Law, our estate planning clients may engage with fiduciaries in several ways. Primarily, they will [1] assign the role of personal representative to the person they want to administer their estate and handle the distribution of their assets after they pass, and [2] they may also designate one or more trustees to manage trusts they establish for their beneficiaries.
Misconduct of a Fiduciary
Fiduciary misconduct in the realm of estate planning is more common than you may think, especially because the testator has named the parties who disappoint so badly by:
- Mismanaging assets through poor investment choices or misuse of funds
- Breaching fiduciary duty by failing to act in the best interests of the beneficiary
- Being unwilling or incapable of successfully performing fiduciary duties
When a serious breach of fiduciary duty occurs, the most urgent remedy is fiduciary removal.
The Process of Removing a Fiduciary in Virginia and Maryland
The procedure for removing a fiduciary varies between Virginia and Maryland.
In Virginia, the process involves an interested party filing a petition in the circuit court. This individual must have valid grounds for removal and be able to prove misconduct, incapacity, or unwillingness to serve. Once the fiduciary is given notice, a hearing is scheduled. During the hearing, the court evaluates the evidence and issues a verdict.
In Maryland, on the other hand, the process involves a petition to the Orphans’ Court (Maryland’s probate court) which handles estate matters. As in Virginia, the court must be shown proof of fiduciary misconduct or incapacity. In Maryland, however, beneficiaries and other interested parties must be notified. At the hearing, the court will rule on the need for fiduciary removal.
As you can see, the process is similar in both states, though there are slight differences in the required documentation as well as in the process of notifying interested parties.
How Randall Borden Will Assist You in Fiduciary Removal
Our attorney is well-versed in the nuances of estate planning and fiduciary law in both Virginia and Maryland. He will provide you with:
- Guidance and Representation by helping you navigate the complex and often emotionally taxing process of removing a fiduciary.
- Documentation and Filing by preparing and filing all necessary legal documents.
- Gathering Evidence for the hearing.
- Representing You in the Court Proceeding by protecting your rights and your best interests.
- Providing You With Ongoing Advice as you set about appointing a new fiduciary, and reorganizing and/or repairing any damage done to the estate plan.
Fiduciary Removal on Your Mind? Speak to Our Experienced Fairfax Lawyer
There are few things worse than feeling disappointed or betrayed by a person trusted to protect your assets and your family. Nonetheless, having to remove that individual from a position of respected authority may be difficult to do — both logistically and emotionally. Contact Randall Borden today. His legal acuity, diplomacy, and diplomacy will simplify the task and restore your self-confidence.