By Fredrick P. Niemann, Esq., a Probate Estate Administration Attorney
The mere existence of a conflict of interest is not a cause for the automatic removal of a fiduciary since fiduciaries often also named as beneficiaries under the governing document and the terms of the operative will or trust often create the conflicts by naming the fiduciary as both beneficiary and representative. However, if the conflict of interest either causes the fiduciary’s conduct, or substantially threatens to make it inconsistent with his or her obligations to the estate or trust, then removal of the fiduciary is warranted.
The removal of a fiduciary should be exercised sparingly and generally requires that the dissatisfied person prove by clear and convincing evidence the existence of a conflict. So long as an executor or trustee acts in good faith and within the scope of his or her powers, his or her acts cannot be successfully challenged.
If a beneficiary claims hostility, tension, personal dislike or malice against him or her as the basis of for removal of a trustee, the court must determine not only the existence of such feelings but whether such a relationship has either resulted in actual acts of misconduct or has created a conflict of interest which appears likely to endanger the trust or the welfare of the beneficiary. A court need not wait until such misconduct has taken place or conflict of interest has actually taken place and interfered with the fiduciary obligation, before the court may remove a trustee where it finds that such action is warranted “to protect the trust against possible future jeopardy”.
If you have questions regarding a probate estate administration matter, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at firstname.lastname@example.org.