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Executors, probate administrators and trustees are all fiduciaries. Therefore, they are legally obligated to act in good faith and solely in the best interest of beneficiaries. A breach of fiduciary duty occurs when the person designated to oversee probate estates or trusts fails to exercise due diligence in executing such duties. If you suspect your fiduciary is breaching his or her legal duties, then talk to us. Our probate litigation lawyers have over three decades of experience and can review your case to decide whether legal action is warranted.


Executors, administrators and trustees have important fiduciary duties owed to beneficiaries:

  • Duty of Loyalty – This means that fiduciaries must administer the trust or estate for the sole interest of the beneficiaries.

  • Duty of Impartiality – This requires fiduciaries to treat all beneficiaries equally or as required by the trust or estate documents. This may cause problems when a beneficiary is also acting as the fiduciary for others.

  • Duty of Prudent Investment – Fiduciaries must make proper and prudent investment of the trust principle.

  • Duty of Proper Fiduciary Accounting – Fiduciaries must maintain proper accountings of all investments and money going in or out of the trust or estate. These accountings can be reported annually or upon request of a beneficiary.

  • Duty to Enforce or Defend Against Claims – The trustee, executor or administrator must legally defend or enforce against claims against the trust or estate.

  • Duty to Avoid Self-Dealing – Fiduciaries cannot use the property in trust or an estate for their own purpose or benefit.

Violations of any of these responsibilities may constitute a breach of fiduciary duty. This is not an exhaustive list of fiduciary duties. Additional duties may include ensuring the trust and the use of special skills to invest and administer the trust, if and when necessary.


Our Bay Area probate litigation attorneys have extensive experience in cases involving breach of fiduciary duty allegations. We understand that some breaches of fiduciary duty may be intentional fraud. However, typically, these breaches arise as the result of negligence, mismanagement or incompetence. The probate litigation practice at Triay Law Office can hold an executor, administrator or trustee accountable in cases involving, but not limited to:

  • Acting in conflict with the best interests of the beneficiaries

  • Demanding unreasonable compensation or attempting to profit from the fiduciary position without consent

  • Failing to distribute funds in a timely manner

  • Failure to properly invest or account for financial activities

  • Failing to respond to requests for information by beneficiaries or other interested parties

  • Negligently managing or valuing assets during the process of estate administration

  • Removing property from an estate without approval

  • “Self-dealing” or transferring assets from an estate to the fiduciary during the process of administering the estate


Beneficiaries and other interested parties need to bring their claims as soon possible. The probate litigation attorneys at the Triay Law Office have compassion for grieving families. We represent clients throughout Northern California, including Oakland, Berkeley, Piedmont, Alameda and Fremont. Unlike many other law firms with a probate litigation practice, we offer clients the option to pay attorney fees on an hourly or contingency basis. 

Whether you are a beneficiary looking to file a claim or a fiduciary seeking defense in probate court, contact our probate litigation law firm. We can show you how the experienced probate litigators at Triay Law Office can help.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.


About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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