Taxation & Estate Planning

Personal Liability of an Executor or Trustee

By Joel A. Schoenmeyer

Attorney Timothy L. Bertschy has a nice article (here, but you must be a member to view it) in this month's Illinois Bar Journal, entitled "Personal Liability of an Executor or Trustee - Time for a Change."

The article focuses on whether a personal representative can be held personally liable (under contract or tort law) for actions taken on behalf of an estate or trust. You might be surprised to learn that, under Illinois law, the answer is typically "yes." This is surprising, and contrary to the more modern laws encapsulated in the Uniform Probate Code and the Restatement (Second) of Trusts. Both the UPC and the Restatement protect the personal representative from personal liability so long as the claim arose out of the personal representative's duties. The author suggests that Illinois follow the UPC and the Restatement (and modern caselaw from other states), and limit the personal liability of personal representatives.

Full post as published by Death and Taxes Blog on March 22, 2010 (boomark / email).