How Do You Prove Breach of Fiduciary Duty?

A fiduciary duty is a legal obligation for a person in a position of trust and confidence, like a trustee or the executor of an estate, to act in the best interest of another party. If a fiduciary fails to act in the beneficiary’s best interest, they have likely breached their fiduciary duty. An experienced trust litigation attorney can help beneficiaries of trusts and heirs of estates pursue legal action against fiduciaries who breach their duties.

What is a violation of fiduciary duty?

A violation of fiduciary duty occurs when a trustee or executor fails to meet their legal obligations, whether under the law or as dictated by a trust agreement. Trustees and executors are fiduciaries, meaning they are required by law to follow specific rules that dictate their behavior. They must act in good faith and with undivided loyalty, always placing a beneficiary’s best interest first, even above their own self-interest.

Falling short of these expectations can expose a fiduciary to serious legal consequences. For example, trustees and executors who violate their fiduciary duties can face suspension or removal from their position and be ordered to pay surcharges (penalties) to reimburse beneficiaries for financial harm caused. In extreme cases, a fiduciary can even face criminal charges. 

What is an example of a breach of fiduciary duty?

Breach of fiduciary duty refers to a situation where an individual owing a fiduciary duty fails to fulfill an obligations for any reason.  Breaches can be intentional or negligent, depending on whether there was intent on behalf of the fiduciary or if it was simply an accident or incompetence that led to a breach.

Some common examples of breach of fiduciary duty include failing to disclose relevant facts, failing to avoid conflicts of interest, and self-dealing, which is when a fiduciary takes advantage of their position for personal profit at the expense of their beneficiary’s profits and assets. Trustees and executors can also breach their fiduciary duties by committing fraud, theft, or embezzlement against the trust or estate.

Who can sue for breach of fiduciary duty?

Only an individual who is owed a fiduciary duty can sue for breach of fiduciary duty. 

For example, trustees and executors owe a fiduciary duty to the beneficiaries of the trust or heirs of an estate, but they do not owe the same level of care to co-trustees and co-executors. Therefore, while heirs and beneficiaries can sue for breach of fiduciary duty, a co-fiduciary cannot, even if they believe that a breach of fiduciary duty is being committed. However, co-trustees and co-executors can petition for a fiduciary to be suspended or removed and surcharged to address any loss caused if they believe they are breaching their duties.

When should I contact a trust litigation attorney?

If you think you may have a case for breach of fiduciary duty against a trustee or executor, you should contact a trust litigation attorney as soon as possible. A knowledgeable probate dispute lawyer can review the situation and determine whether a breach has been committed. If a violation has occurred, that probate litigation attorney can also advise you on whether the case is worth pursuing and the best strategy to address the breach. 

In some circumstances, a lawsuit for breach of fiduciary duty may be warranted, while others may be more efficiently resolved by simply removing the fiduciary from their position. No matter what legal recourse you pursue, you will have the best chance of success if you work with an experienced trust litigation attorney.

Have questions? We’re happy to discuss.
Call (424) 320-9444 or email [email protected]

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About RMO, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Matthew A. Bourque, Managing Attorney – Dallas & Houston

Matthew A. Bourque serves as Managing Attorney of RMO LLP’s Dallas and Houston offices. A thoughtful, diligent litigator, Matthew focuses his practice on representing heirs, beneficiaries, fiduciaries, creditors, and other interested parties in contested probate, trust, guardianship, and financial elder abuse cases. As supported by his accomplished track record, Matthew is able to calmly and expertly navigate the most tumultuous situations with relative ease while securing results for his clients that allow them to move past their dispute and on with their lives.

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