Having a backup plan is never a bad idea. Indeed, the same line of thinking applies to your estate plan. Specifically, it’s important to name a successor fiduciary. This person can step in and take over if your executor or a trustee is no longer able to perform their duties.


Definition of a fiduciary

A fiduciary is an individual (or entity) authorized to act on your behalf regarding a range of financial and legal matters. He or she must put your best interests, and those of your family, first. Thus, a fiduciary has an ethical and legal obligation to act in good faith. This responsibility extends to the operation of trusts and estates.

A successor fiduciary is someone who assumes the role of fiduciary if your original fiduciary must step aside for whatever reason. This can also apply to a trustee who manages assets “poured over” from an estate into a trust.

If you don’t make the necessary provisions, a successor fiduciary may have to be appointed by a court. Thus, it’s best to name one in your will or trust documents. Typically, this person is a relative, family friend or a trusted financial professional. In some cases, the successor fiduciary is a financial institution.


Attributes that make a good fiduciary

The attributes valued in selecting an initial fiduciary are basically the same for a successor fiduciary. Some relevant characteristics are sound judgment and experience, knowledge of family history, investment expertise, a sense of impartiality, and record keeping abilities. Avoid naming anyone with potential conflicts of interest.

In any event, don’t just dump this into the lap of someone who isn’t expecting it or won’t be able to meet your expectations. The job comes with some strings attached. Depending on the circumstances, a successor fiduciary may face difficult decisions involving beneficiaries and might have to contend with intrafamily disputes.


Duties of a fiduciary

One of the key duties of a fiduciary is preparing an account summary of assets, income and expenses. The fiduciary must maintain accurate records and make informed decisions. Transparency is essential. In some cases, the account summary may have to be presented in court, where interested parties can either agree to it or object.

After the account summary has been approved, beneficiaries can no longer contest the financial decisions made by the fiduciary during the applicable period. Nevertheless, a successor fiduciary can still be held responsible for various transgressions. For example, if a successor subsequently discovers mistakes, fraud or “manifest errors” under the predecessor’s watch, the successor should move to reopen the account. Otherwise, the successor could be held liable for any losses.

If a successor fiduciary discovers misconduct by a predecessor fiduciary, a claim may be made on the predecessor’s bond. The bond is a tool for ensuring that the fiduciary fulfills his or her duties to the beneficiaries. A beneficiary or a successor fiduciary can seek damages from the bonding company if losses are attributable to fiduciary misconduct.

Finally, a successor fiduciary must be aware of the statute of limitations regarding certain transactions. Generally, for errors or misconduct by a predecessor, the statute of limitations begins to run when a successor fiduciary knows — or should have known — about a potential breach.


Make an informed choice

There’s no question that when you’re developing your estate plan, there are several important decisions to make. While appointing a successor fiduciary may not be top of mind, it remains a key appointment. Talk to your estate planning advisor if you have questions regarding the role of a fiduciary.

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Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.