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.
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:
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.
Ohio law outlines a number of common scenarios in which a fiduciary can be removed:
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.
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