I often meet with families after a loved one has passed. Recently, a client—the eldest of three siblings from Brooklyn—came to my office. He had just been named the executor of his father’s will and was overwhelmed. His siblings were already asking about their inheritance, a valuable property needed immediate management, and he was staring at a stack of financial documents he didn’t understand. He thought being executor was an honor. He was discovering it was a demanding job with profound legal obligations.
This is the reality of being a fiduciary. The term sounds formal, but its meaning is simple. A fiduciary is a person or institution entrusted to act on behalf of another. In estate planning, this includes the executor of your will, the trustee of your trust, or the agent under a power of attorney. This is not a ceremonial role. It is a position of immense trust, backed by the full force of New York law. Stewardship.
The Two Pillars of Fiduciary Duty
When someone agrees to serve as a fiduciary, they accept legally enforceable responsibilities. The specific tasks are many—from filing taxes to communicating with beneficiaries—but they all fall under two core principles: the duty of loyalty and the duty of care.
The duty of loyalty is absolute. The fiduciary must act solely in the best interest of the estate and its beneficiaries—never in their own. There can be no self-dealing. An executor cannot sell the deceased’s home to themselves at a discount. A trustee cannot invest trust funds into their own struggling business. New York law is strict on this point. Under Estates, Powers and Trusts Law (EPTL) § 11-1.7, a will cannot legally exonerate an executor from liability for failing to exercise reasonable care and prudence. The duty is non-negotiable.
The second pillar is the duty of care, or prudence. A fiduciary must manage the estate’s assets with the same skill and caution a prudent person would use for their own affairs. This means more than just avoiding theft. It requires active, competent management. Leaving a substantial sum of cash in a non-interest-bearing checking account for years could be a breach of this duty. Failing to properly insure a valuable property or neglecting to diversify a large stock portfolio could also be breaches. The fiduciary is a diligent custodian of the legacy they have been asked to oversee.
Beyond Bloodlines: Choosing the Right Steward
In my practice, I see the same selection mistake made time and again. A parent names their oldest child as executor and trustee, assuming it’s the natural choice. This is a decision based on tradition, not on an honest assessment of the skills required. The person best suited to be your fiduciary may not be your closest relative.
When you choose a fiduciary, you are hiring someone for a critical job. You must consider their temperament, financial acumen, and ability to communicate clearly and impartially. Ask yourself:
- Is this person organized and detail-oriented enough to handle complex record-keeping and court filings?
- Can they remain neutral and fair when dealing with competing demands from beneficiaries—even if those beneficiaries are their own siblings?
- Do they have the financial sophistication to manage investments, value assets, and work with accountants?
- Do they have the time and willingness to dedicate what could be hundreds of hours to the task?
Sometimes, the best choice is not a family member. For larger or more complex estates, or for families with a history of conflict, appointing a corporate trustee or a professional fiduciary can be the most prudent path. An institution brings impartiality, expertise, and resources an individual might lack. They are not swayed by family dynamics and are bound by stringent professional and legal standards. This decision can preserve not just the assets, but the family harmony your legacy is meant to support.
The Fiduciary’s Burden is the Estate’s Protection
The legal framework governing fiduciaries can seem daunting. It is meant to be. The law imposes these high standards because the assets you accumulated over a lifetime—and the well-being of the people you love—are at stake. The executor of a will or the trustee of a trust holds the power to either honor your intentions or undermine them through neglect or self-interest.
The role of a fiduciary is not a reward for a lifetime of friendship or a symbol of birth order. It is a solemn duty that requires integrity, diligence, and a clear understanding of the law. Choosing the right person for this role is one of the most important acts of stewardship you will undertake in your own lifetime.
If you are creating an estate plan or re-evaluating the appointments in an existing one, the next step is to create a shortlist of candidates for each fiduciary role. Write down not just who you trust, but who is genuinely equipped for the job. Bring that list to your next meeting with your counsel so we can have a frank discussion about the practical and legal implications of your choice.
