Appointment and Removal of Fiduciaries Attorney in Cleveland
There are a number of fiduciary roles that may be involved with the management, administration, and disbursement of an estate, both within and outside the probate court process. By definition, a fiduciary is a person or organization with an obligation to act in the best interest of another party or parties, without regard to their own best interest, in a way that preserves good faith and trust. Examples of a fiduciary include an executor or administrator (charged with settling an estate), a trustee (charged with administering a trust), and guardianships and conservatorships (charged with handling the affairs of a living person). These roles have significant power when it comes to managing the financial affairs of an incapacitated, incompetent, or deceased individual. Disagreements over appointments are best handled by a Cleveland probate attorney before an appointment is made. However, at any stage when wrongdoing occurs or removal of a fiduciary is necessary or desired, contacting experienced legal help as soon as possible is always the best course of action.
Appointment of Fiduciaries in Ohio Probate
A probate action, whether administration of an intestate estate (without a Will) or the admittance of a Will, requires the appointment of an individual who will administer the decedent’s estate. When that person is chosen by the deceased as part of a Last Will and Testament or other estate-planning document, he or she is called an executor. When no such person has been identified, the court will appoint someone to the role of administrator. A fiduciary under Title 21 of the Ohio Revised Code is an individual appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another. Trustees, appointed by trust documents to administer assets held in trust, also have a fiduciary duty, although these assets often pass to heirs outside the supervision of probate court. The general duties of a fiduciary as part of the estate-settlement process are:
- Collection of assets
- Payment of debts
- Proper distribution of assets to heirs
Fiduciaries also incur certain liabilities. If an executor or administrator neglects to sell personal property that is required to be sold, and instead retains, consumes, or disposes of it for his or her own benefit, he or she will be charged with the personal property at double the appraised value. Ohio Rev. Code Ann. § 2113.34. Fiduciaries must be bonded and insured in most cases, which means they must have a solid credit rating. With some exceptions, he or she must also be an Ohio resident who is at least 18 years of age. Because of such personal liability, it is common for a fiduciary to seek the legal help and guidance of an experienced Cleveland probate lawyer in settling an estate, particularly when disagreements or acrimony create the likelihood of litigation or accusations.
Removal of a Fiduciary
Ohio law outlines a number of common scenarios in which a fiduciary can be removed:
- If a fiduciary fails to make and file an inventory or fails to submit an account of the fiduciary’s administration as required.
- Removal of a fiduciary for habitual drunkenness
- Neglect of duty
- Incompetency
- Fraudulent conduct
- By request of the interest of the property, testamentary trust, or estate
- Other reasons allowed by law
When significant issues arise over the appointment of a fiduciary, or his or her handling of estate affairs, such issues do not usually resolve as the estate administration process unfolds. Because the probate process is designed to quickly settle an estate (typically in six months), seeking experienced legal help from a Cleveland probate attorney is best done as early in the process as possible. The time to contest the court’s decisions is not after you have become dissatisfied with the outcome. Daniel McGowan represents clients in probate and estate matters throughout the Cleveland area, including Lakewood, Rocky River, Fairview Park, Shaker Heights, Cleveland Heights, South Euclid, East Cleveland, Linndale, Brooklyn, Parma, and Brook Park. Newburgh Heights, Cuyahoga Heights, Brooklyn Heights, Warrensville Heights, Maple Heights, Garfield Heights, Bratenahl, and Euclid.
Call (216) 616-7592 today for a confidential consultation.
Our FAQ
Have questions? We are here to help. Still have questions or can't find the answer you need? Give us a call at 216-616-7592 today!
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What should I do if I suspect a fiduciary is mismanaging assets?If you suspect a fiduciary is mismanaging assets, it is crucial to act quickly to protect the interests of the beneficiaries. Document any evidence of mismanagement and consult with a lawyer to discuss your concerns. Legal action may include petitioning the court for the fiduciary’s removal and holding them accountable for any losses. Reach out to us at McGowan Law Firm for expert legal advice and assistance in addressing fiduciary mismanagement.
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Can beneficiaries request increased oversight instead of immediate removal?Yes—courts sometimes impose additional oversight rather than removal, especially if misconduct is minor or disputed. Oversight measures may include mandatory accountings, bonding, or supervised distributions. This allows the fiduciary to remain in place while ensuring accountability. Beneficiaries can petition for these safeguards if they prefer continuity over disruption. Attorneys can negotiate tailored conditions that balance trust protection with efficient management. Such compromises often resolve disputes without full court battles.
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What happens if no qualified replacement is available after a fiduciary’s removal?If no family member or interested party qualifies, courts may appoint a neutral third party such as a professional trustee or attorney. These independent fiduciaries bring objectivity but may charge higher fees. Their appointment ensures continuity in managing assets and responsibilities. Beneficiaries may have limited say in who is selected, though they can present recommendations. Courts prioritize competence and neutrality above personal preference. This approach protects the estate or trust from disruption.
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Can a fiduciary be removed for conflicts of interest even if no misconduct occurred?Yes—courts may remove a fiduciary when a conflict of interest creates doubt about impartiality, even without direct misconduct. Examples include business dealings with the estate, personal relationships, or benefiting from contested transactions. The court’s goal is to ensure absolute loyalty to the beneficiaries. Beneficiaries may file petitions highlighting the conflict and requesting a replacement. An attorney can present evidence that the fiduciary’s dual interests threaten fair administration. Prevention of harm often guides the court’s decision, not just proof of damage.
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Can I change my fiduciary after they have been appointed?Yes, it is possible to change your fiduciary after they have been appointed, but it requires legal proceedings. You must demonstrate valid reasons for the change, such as the fiduciary’s inability to perform their duties or a breach of trust. Consulting with an attorney can help you navigate the process and ensure that the transition is handled smoothly. We at McGowan Law Firm are here to help you with the legal steps to appoint a new fiduciary.
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What qualifications should a fiduciary have in Cleveland?A breach of fiduciary duty occurs when the fiduciary fails to act in the best interest of the beneficiary. This can include self-dealing, misuse of funds, or failing to provide necessary information. If you suspect a breach, it's essential to contact us for legal assistance to protect your interests and seek justice.