What is the Remeedy if an Adminsitrator Doesn'y Give Notice to an Heir?
Executors are "fiduciaries," which means that the executor must act with the highest degree of good faith in behalf of the estate. The executor must keep his money separate from the estate's; keep detailed records concerning all transactions he engages in on the estate's behalf; not stand to profit by any transaction where the executor represents the estate's interests; and not make a gift or otherwise transfer any of the estate's money, personal property, or real estate to himself unless the will or court order explicitly states he can do so.
Various remedies may be available if a fiduciary duty was breached. Common actions for an abuse of a fiduciary duty, among others, include a petition for an accounting, claim of breach of fiduciary duty, theft, conversion, or a fraud charge.
It will be a matter of subjective determination for the court to determine whether there was a breach of fiduciary duty, based on all the facts and circumstances involved. The standards of care are measured against the subjective interpretation of how a "reasonable" person would act in similar circumstances.
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
(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)
We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you consult a local attorney who can review all the facts and documents involved.
Please see the following CA statutes to determine applicability: