Appointment and Removal of Fiduciaries

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 or an incapacitated, incompetent or deceased invididual. 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 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, Brook Park. Newburgh Heights, Cuyahoga Heights, Brooklyn Heights, Warrensville Heights, Maple Heights, Garfield Heights, Bratenahl and Euclid. Call 216-242-6054 today for a free and confidential consultation.