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B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

PJC 232.2

PJC 232.2

Breach of Duty by Personal Representative—Self-Dealing

QUESTION ______ Did PERSONAL REPRESENTATIVE comply with his fiduciary duty in con nection with [ describe self-dealing transaction ]? In administering the estate, PERSONAL REPRESENTATIVE owed the bene ficiaries of the estate a fiduciary duty. To prove he complied with this duty in connection with [ describe self-dealing transaction ], PERSONAL REPRESEN TATIVE must show that, at the time of the transaction in question— [Use only the items that are relevant in the particular case.] 1. the transaction in question was fair and equitable to the beneficia ries , considering PERSONAL REPRESENTATIVE ’s obligations in adminis tering the estate; [ and ] 2. PERSONAL REPRESENTATIVE made reasonable use of the confi dence placed in him as the result of his appointment; [ and ] 3. PERSONAL REPRESENTATIVE acted in the utmost good faith and exercised the most scrupulous honesty toward the beneficiaries in connec tion with the transaction in question; [ and ] 4. PERSONAL REPRESENTATIVE placed the interests of the benefi ciaries before his own and did not use the advantage of his position to gain any benefit for himself at the expense of the beneficiaries ; [ and ] 5. PERSONAL REPRESENTATIVE fully and fairly disclosed to the beneficiaries all material facts known to PERSONAL REPRESENTATIVE concerning the transaction in question that might affect the rights of the ben eficiaries . “Good faith” means an action that is prompted by honesty of intention and a reasonable belief that the action was probably correct. Answer “Yes” or “No.” Answer: _______________

COMMENT When to use. The foregoing question should be used when an executor or admin istrator is accused of self-dealing in a transaction that is not specifically addressed by

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