What is the Administrator's Duty to Sell or Rent Real Estate of the Deceased?
Full Question:
Answer:
The executor owes all heirs a fiduciary duty to handle the estate in a reasonable manner and if s/he does not the Court can be involved. If the exercise of power concerning the estate is improper, the personal representative is liable for breach of her/his fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust.
The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.
The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.
Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:
(1) The passing of the statute of limitations for filing the claim.
(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)
(3) Lack of standing
(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)
(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)
Please see the following OH statutes (assuming that is where the brother resided when he died):
2113.31 Responsibility of executor or administrator.
Every executor or administrator is chargeable with all chattels, rights, and credits of the deceased which come into his hands and are to be administered, although not included in the inventory required by section 2115.02 of the Revised Code. Such executor or administrator is also chargeable with all the proceeds of personal property and real estate sold for the payment of debts or legacies, and all the interest, profit, and income that in any way comes to his hands from the personal estate of the deceased.
2113.311 Management and rental of real estate by executor or administrator.
(A) If, within a reasonable time after the appointment of the executor or administrator, no one in authority has taken over the management and rental of any real estate of which the decedent died seized, the executor or administrator, or an heir or devisee may, unless the will otherwise provides, make application to the probate court for an order authorizing the executor or administrator to assume such duties. Such application shall contain:
(1) A brief statement of the facts upon which the application is based and such other pertinent information as the court may require;
(2) A description or identification of the real estate and the interest owned by the decedent at the time of his death;
(3) The names and addresses, if known to the applicant, of the persons to whom such real estate passed by descent or devise.
Notice of the time of hearing on such application shall be given to the persons designated in sub-paragraph division (A)(3) of this section, unless for good cause the court dispenses with such notice, and also to the executor or administrator, unless the executor or administrator is the applicant.
If the court finds that the statements contained in the application are true and that it would be for the best interest of such heirs or devisees that the application be granted, it may authorize the executor or administrator to assume the management and rental of such real estate.
The court may require bond, new or additional, in an amount to be fixed by the court and conditioned that the executor or administrator will faithfully and honestly discharge the duties devolving upon him by the provisions of this section.
(B) In the exercise of such authority, the executor of administrator shall be authorized to do the following:
(1) Collect rents;
(2) From the rents collected:
(a) Pay all taxes and assessments due on such real estate, and all such usual operating expenses in connection with the management thereof;
(b) Make repairs when necessary to preserve such real estate from waste, provided that an order of the court shall first be obtained if the cost of such repairs exceeds one hundred dollars;
(c) Insure buildings against loss by fire or other casualty and against public liability;
(3) Advance money upon an order first obtained from the court, for such repairs, taxes, insurance, and all usual operating expenses, which shall be a charge on such real estate;
(4) Rent the property on a month to month basis, or, upon an order first obtained from the court, for a period not to exceed one year;
(5) Prosecute actions for forcible entry and detention of such real estate.
The executor or administrator shall, at intervals not to exceed twelve months, pay over to the heirs or devisees, if known, their share of the net rents, and shall account for all money received and paid out under authority of this section in his regular accounts of the administration of the estate, but in a separate schedule. If any share of the net rents remains unclaimed, it may be disposed of in the same manner as is provided for unclaimed money under section 2113.64 of the Revised Code.
The authority granted under this section shall terminate upon the transfer of the real estate to the heirs or devisees in accordance with section 2113.61 of the Revised Code, or upon a sale thereof, or upon application of the executor or administrator, or for a good cause shown, upon the application of an heir or devisee.
Upon application the court may allow compensation to the executor or administrator for extraordinary services, which shall be charged against the rents, and if said rents be insufficient, shall be a charge against such real estate.
Upon application the court may allow reasonable attorney fees paid by the executor or administrator when an attorney is employed in connection with the management and rental of such real estate, which shall be charged against the rents, and if said rents be insufficient, shall be a charge against such real estate.
2113.32 Executors and administrators not to profit.
No profits shall be made by executors or administrators by the increase of any part of an estate, nor shall they sustain any loss by the decrease or destruction of such estate without their fault.
2113.34 Chargeable with property consumed.
If an executor or administrator neglects to sell personal property which he is required to sell, and retains, consumes, or disposes of it for his own benefit, he shall be charged therewith at double the value affixed thereto by the appraisers.
