by Ann Marie Dwyer

Created on: December 02, 2008   Last Updated: December 12, 2008

A fiduciary is one entrusted with another person's assets or to provide trusted advice regarding assets. Many duties befall the fiduciary, especially in the case of estate planning and probate litigation.

Primary fiduciary responsibilities

1. Loyalty to the client: The fiduciary must both act in the best interest of the client and subordinate his own interests. If the fiduciary always acts in the best interest of the client, his reward will be commensurate with his well-performed duties.

2. Conflict, confidence and disclosure: All conflicts of interest, or potential conflicts, must be revealed. Fiduciaries must maintain all of the client's confidences. All information affecting the client's interest must be revealed, even when information is gained in a confidential communication with another client. Fiduciaries have the responsibility to remain conflict free and be honest at all times.

3. Due diligence: Fiduciaries must exercise professional expertise in all aspects of the client's employ. From the original drafting of estate documents to the final disposition of probate litigation, trustees, attorneys and executors must execute their fiduciary duties with professional skill, good faith and fidelity.

Estate planning

Before drafting estate documents, the attorney must investigate any conflicts of interests, whether direct or potential. This assessment must include full disclosure of any dealings with the proposed beneficiaries and those who may hold a probate claim against the estate at execution.

Potential conflicts are most common, including excluded beneficiaries and lien holders against estate properties. Ethically, attorneys may not take a case where a direct conflict arises, unless the client waives his right to be protected from the conflict. Bar associations provide their ethical guidelines for conflicts of interest upon request.

When drafting a will, many people do it themselves. They should always submit it to an attorney before the document becomes irrevocable. Personal wills may not provide for estate or trust money to be set aside to pay professionals to handle probate costs. This means the beneficiaries will bear the cost, lessening the bequeath. The attorney's fiduciary responsibility will be to advise the client on the best strategies for protecting assets from excess taxes, penalties and legal reductions.

Appointing an appropriate executor or trustee is imperative. While many executors and trustees are family members, professional fiduciaries offer

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