Our office has had the pleasure of assisting numerous personal representatives and trustees carry out their fiduciary duties to the beneficiaries of their respective estates and trusts.  Serving as a personal representative of an estate or trustee of a trust can be a daunting challenge.  Many times, the fiduciary inherits an uncomfortable situation, not of their own making, that he or she is responsible for sorting out, all while navigating unique family dynamics.  More often than not, difficult decisions must be made for the benefit of all beneficiaries of the estate or trust.

Fiduciary Duty

In Massachusetts, personal representatives and trustees are held to the same fiduciary duty regarding the administration of their respective estates and trusts, which requires the highest duty of care.  Black’s Law Dictionary defines fiduciary duty as “[a] duty of utmost good faith, trust, confidence, and candor owed by a fiduciary to the beneficiary; a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person.”  (7^th Ed., p. 523)  This fiduciary duty runs from the personal representative or trustee to each beneficiary of the estate or trust.  A personal representative or trustee who favors one beneficiary over another runs the risk of being exposed to liability.

In recent years, our office has counseled a number of fiduciary clients who, following the death of an elderly parent, all faced a variation on the challenging situation illustrated in the example below.

Consider the Following Hypothetical:

Mom, the last surviving parent, has recently passed away.  Oldest daughter has been appointed personal representative of mom’s estate and successor trustee of mom’s trust.  Among her other assets, mom, by way of her will, has left her home to the trustee of her trust.  The beneficiaries of that trust are her five children.  One of those children, brother, has lived at mom’s home with her, rent free, for the past ten-plus years.  Brother has no written lease.  He has no money of his own, no employment, and no intention of gaining employment.  He refuses to vacate mom’s home after her death.  The trust is silent as to beneficiaries’ rights to reside in the home.  The four remaining siblings are in agreement that mom’s home should be sold and the proceeds from that sale distributed equally among them.

What rights does brother have? 

Is brother a trespasser, with no rights at all now that mom has passed away, and subject to removal by the police?

Is he a tenant at sufferance, a tenant who has overstayed the expiration of his lease now that mom has passed away, and subject to an immediate summary process (eviction) proceeding and liability for his continued use and occupancy of the premises?

Is he a tenant at will, a month to month tenant whose tenancy can be terminated by either the tenant or the landlord by three months written notice?

Brother claims that he has the right to continue to reside in mom’s home as he has been doing because he is a beneficiary of mom’s trust, and is resolved to stay there.

What is the fiduciary to do? 

As trustee, oldest daughter has a fiduciary duty to act in the best interests of all trust beneficiaries.  She cannot favor one sibling or siblings over the others.

Our firm has encountered situations similar to this hypothetical numerous times over the past few years, and we have been successful assisting our fiduciary clients in navigating them.  In our experience, the most prudent course of action in such a situation is to take a conservative approach. Accordingly, we have successfully taken the position that brother is a tenant at will and proceeded by having him served with the statutory three-month notice to quit of G.L. c. 186, §12, commencing a summary process proceeding, evicting him should he fail to timely vacate the premises, and finally selling the property for the benefit of all the beneficiaries.

This is just one example of a situation that a personal representative or trustee may be confronted with and be required to address.  There are myriad variations on the above hypothetical alone that could arise that this article is neither intended to nor could possibly cover.  Should you be faced with a similar situation or any other challenge as a fiduciary that appears daunting, MacLean Holloway Doherty & Sheehan would be happy to assist you.

The information provided in this article is for general informational purposes only and does not constitute legal advice. While we strive to ensure the accuracy of the content, the details presented may not apply to every situation or jurisdiction. For advice specific to your individual circumstances, we recommend consulting with a qualified attorney.