Addressing breaches of trust in probate court

When people hear the term fiduciary, they tend to either think of trust, or broken trust. Both are equally real experiences in the world of probate court. In fact, over the summer Colorado senators Laura Woods and Pat Steadman held a hearing in which the disgruntled families of deceased individuals’ shared their stories about the difficulties of probate, as well as their suggestions for improving the system.

A particularly problematic aspect of the probate process is mishandling by court-appointed fiduciaries. Probate courts, as readers may know, have the ability to appoint a fiduciary to assist with conservatorships, guardianships, protective proceedings, and certain other estate-related processes such as power of attorney.

Probate courts here in Colorado have the authority to conduct an investigation of a fiduciary, either on its own motion or at the request of an interested party. The court, in doing so, may request an account of assets of the estate and a financial report. This process can be carried out with any fiduciary, whether selected by the court or otherwise.

If a court determines that a fiduciary has mishandled estate assets, appropriate steps may be taken to address the breach of trust. In emergency situations, where a Protected Person’s physical or mental well-being is in danger or where there is an imminent and substantial risk to the financial interests of the estate, the court may immediately suspend the fiduciary’s powers.

In non-emergency situations, the court has several options:

• Supervised administration of the estate
• Restrictions on the powers of the fiduciary
• Suspension or removal;
• Appointment of a temporary or permanent successor fiduciary
• Investigation of the fiduciary’s conduct
• Surcharge or sanctioning of the fiduciary

Those who feel they have been subjected to abuse at the hands of a fiduciary should always work with an experienced attorney to ensure their rights are protected. This is especially important in cases where the abuse is egregious and could serious harm a beneficiary or estate assets.

Source: Colorado Revised Statutes, §15-10-501-505