Fiduciary Authority and Liability in Probate Estates: An Empirical Analysis
41 Pages Posted: 19 Nov 2019 Last revised: 26 Jun 2020
Date Written: November 11, 2019
This Article presents an empirical analysis of testamentary preferences pertaining to the selection, compensation, appointment, powers, and liability of executors. Often an after-thought in the will-drafting process, such administrative terms deserve careful attention because the executor’s central role in the transfer of property at death is so often a source of posthumous conflict. Prior research has shown that executor-related objections are the most frequently asserted claims in probate litigation. This Article surveys the history of estate fiduciary law and summarizes major reforms in the twentieth century that established modern rules governing the appointment, powers, and liability of executors. It then presents empirical findings from a sample of wills probated in New Jersey in 2015.
Major findings from this dataset reveal new information about: (1) who testators nominate to serve as executor, (2) how often nominees agree to serve as executor, (3) what testators say about executor compensation, (4) which fiduciary powers testators grant or withhold from the executor, and (5) whether testators exculpate their executors from liability or otherwise modify the default fiduciary duties of care and loyalty. The Article provides examples of executor-related will provisions extracted from the dataset of probate files.
Keywords: fiduciary, fiduciary powers, fiduciary liability, fiduciary duties, probate, executor, exculpation, fiduciary compensation, empirical
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