Many times when a person is creating a will or a trust, they will nominate a child or other family member to act as executor or trustee. In theory, there is nothing wrong with doing this. However, in my many years of practice, I have seen problems arise after the death of the parent or other loved one because the trustee or executor is no longer getting along with the rest of the family. Communication has broken down, tensions have risen, and eventually the family is at war over the estate of their loved one.

Special duty of trust and responsibility.

A trustee or executor is a “fiduciary” of the estate and the beneficiaries of the will or trust. A fiduciary is someone who has a special duty of trust and responsibility to an individual or a group, such as the beneficiaries of a will or trust.

This means that the executor or trustee must always act with the best interest of the estate and beneficiaries in mind and must not intentionally engage in any act or make any decisions that could harm the estate or the beneficiaries.

Required: honest open communication.

Moreover, the trustee or executor is required to act in accordance with the probate code and must communicate honestly and openly with the beneficiaries, gather all property of the estate, and prepare an accounting of all property that passes through the estate.

The benefits of a professional trustee or executor.

Because of the unique and special duties of an executor or trustee, I usually advice my clients to consider naming a professional to act as executor or trustee rather than a child or other family member. This reduces the likelihood of drama and chaos if familial relationships breakdown after the client’s death. Although hiring a professional costs money, I believe it is a wise investment. After all, it’s better for the family to be united with the professional executor or trustee than to be at odds with one another.

Getting expert help.

If you are currently planning your estate and are interested in naming a professional fiduciary to act as trustee or executor, consider your bank. For a fee, most banks are more than happy to provide such services to their customers. There are also number of companies which specialize in acting as executor or trustee… and in California you also have the option of naming a licensed “private professional fiduciary” – an individual who is licensed by the California Dept of Consumer Affairs.

Compelling the executor or trustee to comply

As a beneficiary of a will or trust, if you find yourself in the position of dealing with a trustee or executor who refuses to communicate or is otherwise mishandling the estate, you are not at his or her mercy. You do have options. Whether your situation involves a misbehaving trustee or a misbehaving executor, you should consider filing a petition with the probate court to compel the executor or trustee to comply with the terms of the will or trust. If the court determines that the terms of the will or trust are not being carried out, it will enter an order requiring the trustee or executor to perform certain acts as set forth in the will or trust document within a specified time period. Failure of the trustee or executor to comply with the court’s order could result in his being held in contempt and may even necessitate his removal as trustee or executor.

If you suspect mismanagement or worse

You may also want to file a petition for an accounting with the probate court. If the court finds in your favor, the trustee or executor must provide a detailed breakdown of all monies or other assets that have come into or gone out of the trust. Moreover, if you believe the trustee or executor has embezzled or mismanaged the money or other assets left by the decedent (the person who died and left the will or established the trust), you may also have a civil claim for “conversion” , which is similar to the criminal charge of theft.

In cases involving an irrevocable trust, California law requires the trustee to provide the beneficiaries with a copy of the trust document upon the death of the settlor (the person who established the trust). If the trustee has failed to provide the beneficiaries with a copy of the trust document, they should consider filing a motion to compel its production with the probate court.