Some estate trustees are flattered to have been selected as the deceased’s personal representative after death and may even regard these duties as a “money maker”. Others may simply feel that they owe the deceased a duty to carry out their last wishes. What is not considered on many occasions is the liability which the estate trustee might face if the job is not done properly.
Estate trustees must understand that they owe a duty of good faith to discharge their duties under the will and on behalf of the beneficiaries. It is not unheard of for beneficiaries to be ungrateful and un-trusting of the estate trustee. In addition to all of this, sometimes a trustee must contend with disappointed beneficiaries, court applications, and requests to “pass their accounts” in formal fashion at court. Estate litigation is becoming ever more frequent especially given the wealth transfer which is taking place from one generation to the next. This is not to mention the claim that the estate trustee has overpaid themselves in administering the estate.
Recently, executor’s insurance has become available for estate trustees to limit their exposure in undertaking the onerous tasks required of an estate trustee. Being an estate trustee means that you are personally liable (in certain circumstances) to the estate or the beneficiaries.
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No one can say that the insurance industry is not innovative. Executor’s insurance is an example. It should not be overlooked by an estate trustee as one method of ensuring that they do not suffer personal exposure. Testators (those persons who make wills) should also consider inserting a provision to permit the estate trustee to purchase insurance from the assets of the estate. The following is an example of such a clause:
I authorize my Trustee(s) to purchase, at the expense of my estate, such errors and omissions insurance as my Trustee(s) determine(s) in his/her/their sole discretion is sufficient to protect my Trustee(s) against claims and losses arising from errors or omissions in the administration of the estate. The cost of such insurance shall not be deducted from the compensation to which my Trustee(s) is/are otherwise entitled for so acting.
