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California Fiduciary and Fiduciary Duty Defined

February 21st, 2017

One of the unique aspects of trust, estate, and conservatorship litigation is the fiduciary duties that one party often owes to an opposing party. These arcane terms —“fiduciary” and “fiduciary duty”— are rarely heard in everyday conversation, and yet as soon as one has the misfortune of being involved in a trust or will dispute, trust contest, or contested conservatorship they seem to be tossed around constantly by the attorneys.  This article explains these terms, absent the details and lists contained in the California Probate Code.

California Probate Code §39 defines a “fiduciary” as:

“A personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer to Minors Act…or other legal representative subject to this code.”

A person serving in any of these roles must fulfill his or her “fiduciary duty” to another person, usually a beneficiary, conservatee, or principal under a power of attorney. The Probate Code is replete with the specific elements of these fiduciary’s duties, but a more general statement is often more helpful.  Black’s Law Dictionary defines a “fiduciary duty as:

“A duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law.”

In nearly every estate, trust, or conservatorship litigation case, at least one of the parties is a fiduciary, and usually owes a fiduciary duty to another party. As a result, many fiduciary litigants find themselves accused by a beneficiary of some terrible wrongdoing for which the beneficiary seeks to hold them personally liable.

Naturally, the fiduciary wants to defend his or herself aggressively, and may even want to employ a “scorched earth” litigation strategy to vindicate their conduct. This is almost always a mistake, because, while the fiduciary has a right to defend his or her conduct, they must simultaneously subordinate their own personal interests to that of the beneficiary, who is also their adversary.

Doing this perfectly is nearly impossible, and no matter how reasonably the fiduciary behaves, a beneficiary is likely to complain. The good news for fiduciaries is that perfection is not expected or required—a good faith effort to look out for the well-being of an aggrieved beneficiary while patiently but doggedly pointing out to the court that the beneficiary is mistaken, unhinged, or simply wrong will usually suffice.  The crucial first step for any fiduciary involved in litigation is to simply know that they are a fiduciary and owe various duties to their adversary.


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