WHAT IS YOUR DUTY WHEN YOUR FIDUCIARY-CLIENT IS DERELICT IN HIS DUTIES?

April 11, 2013 § 2 Comments

It seems to be a more and more frequent problem that when we issue orders in delinquent estates, an attorney pops up and says something like, “Well, judge, the reason we haven’t filed an inventory, or any accountings since 1997 is that I lost contact with the fiduciary.”

Who’s got the problem in that situation? 

Well, UCCR 6.02 says this about that:

In guardianships and conservatorships an attorney must be faithful to both fiduciary and the ward and if it appears to the attorney that the fiduciary is not properly performing duties required by the law then he shall promptly notify the Court in which the estate is being administered. Failure to observe this rule without just cause shall constitute contempt for which the Chancellor will impose appropriate penalties.

And what exactly are those “duties required by law?” Here’s what UCCR 6.02 says:

Every fiduciary and his attorney must be diligent in the performance of his duties. They must see to it that publication for creditors is promptly made, that inventories, appraisements, accounts and all other reports and proceedings are made, done, filed and presented within the time required by law, and that the estates of decedents are completed and assets distributed as speedily as may be reasonably possible.

It’s pretty clear from the language of the rule that your neck is in the noose along with your fiduciary. If the requirements are not met, you are as responsible for the lapse as is your fiduciary. Oh, and explaining to the chancellor that you had no idea that the Uniform Chancery Court Rules had this provision will in all likelihood only make things worse.

Here are some helpful posts from the past … Five Mistakes that Fiduciaries MakeFive More Mistakes that Fiduciaries MakeApproaching Zero Tolerance … and … Essential Procedures in Guardianships and Conservatorships.

If the landscape of your probate practice is littered with failures to file accountings, inventories and other reports, and you have estates that due to sheer neglect are languishing unclosed far beyond what is reasonable, look no farther than yourself for a place to lay the blame. That’s where the judge will look.

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§ 2 Responses to WHAT IS YOUR DUTY WHEN YOUR FIDUCIARY-CLIENT IS DERELICT IN HIS DUTIES?

  • Very timely, Judge. I have a testate estate right now that I cannot get the Executrix to do anything in, and the alternate Exec doesn’t want to fool with it. I represent the estate but I had signed off on pleadings as the attorney for the exec. This bothered me concerning my roll and who I represent. I talked to the judge on it and he said my ethical duty was to make the court aware of the situation and let it take the appropriate action. I find that chancellors are willing to help you solve dilemmas if you simply ask.

    • Larry says:

      Exactly. When it comes to probate matters, the lawyer judge and fiduciary are all components of a mechanism to protect the beneficiaries or wards and creditors. If one component fails, it is up to the others to fix the problem and, if necessary, replace the faulty component. As a lawyer and officer of the court, you don’t want that faulty component to be you.

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