What is a breach of fiduciary duty?

It occurs when a trustee, personal representative, agent, guardian, conservator or other fiduciary fails to meet their legal obligations, for example by self-dealing, mismanaging or misappropriating assets, failing to account, favoring one beneficiary over another, or keeping beneficiaries in the dark. The fiduciary can be held personally liable for the resulting losses.

How do I remove a trustee or personal representative in Arizona?

You file a petition with the probate court. A trustee may be removed for a material breach of trust, lack of cooperation among co-trustees, or unfitness or persistent failure to administer the trust for the beneficiaries' benefit. A personal representative may be removed for cause, such as mismanagement or breach of duty.

What is a trustee surcharge?

A surcharge is a money judgment imposed on a trustee to compensate the trust and its beneficiaries for losses caused by a breach of trust. The trustee is liable for the greater of the amount needed to restore the trust's value or the profit the trustee gained from the breach.

Can a fiduciary be forced to provide an accounting?

Yes. Beneficiaries and other interested persons generally have the right to demand a full accounting, and the court can compel one. A missing, vague or incomplete accounting is often the first sign of a deeper problem and a frequent starting point for fiduciary litigation.

I am a trustee or executor being accused of wrongdoing. Can you help me?

Yes. We regularly defend fiduciaries who acted reasonably and in good faith but are facing claims from unhappy beneficiaries. We also help fiduciaries seek court approval, instructions, or a declaratory ruling so their conduct is protected in advance.

How are attorneys' fees handled in fiduciary disputes?

It depends on the type of case. Typically, the trustee or personal representative is entitled to pay their attorneys' fees from the trust or estate. In some trust and estate matters the court has discretion to award fees from the trust or estate or against a party, and in vulnerable-adult financial exploitation cases the statute specifically allows recovery of costs and attorneys' fees against the exploiter.

Arizona Fiduciary Litigation Attorneys

Reviewed by Kent Berk, Arizona probate, trust & fiduciary litigation attorney.

A fiduciary holds the legal duty to act with absolute loyalty and care for someone else: a trust, an estate, a vulnerable adult, or another person who depends on them. When a fiduciary falls short, or when a fiduciary is wrongly accused, the stakes are high: family relationships, inheritances, reputations, and personal liability are all on the line.

Our Scottsdale firm focuses exclusively on probate, trust, estate, inheritance and fiduciary litigation, and we hold an AV Preeminent rating from Martindale-Hubbell, the highest mark of professional excellence. Whether you are a beneficiary who suspects a trustee is mismanaging assets, an heir cut out by someone in a position of trust, or a personal representative, trustee or agent who needs experienced counsel, we are prepared to litigate aggressively or negotiate skillfully, depending on what best serves your goals.

Talk through your situation with an experienced fiduciary litigator. Call 480.607.7900 or schedule your consultation today.

Berk Law Group, P.C.

Integrity. Dedication. Excellence. Since 1996.

Scottsdale, Arizona
480.607.7900

Free · Private · About 2 minutes

Arizona Fiduciary Breach Self-Assessment

If you are a beneficiary, heir, or other interested person, this short self-assessment helps you recognize the classic warning signs that a trustee, personal representative, agent, guardian, or conservator may not be handling their duties properly. Answer a few plain-language questions and get an instant, general read on your level of concern along with practical next steps.

Basic definitions

What is a fiduciary?

Someone the law trusts to manage money or property for another: a trustee, personal representative, agent, guardian, or conservator.

What is a breach?

When a fiduciary hides information, refuses an accounting, mismanages or takes assets, or favors themselves or insiders.

Your rights

You generally have the right to information, a copy of the governing document, and a full accounting.

Your remedies

A court can order an accounting, remove or surcharge a fiduciary, undo transfers, and return money or property.

Completely private. Your answers are not saved or transmitted.

Please note: Your answers are not saved or transmitted. Results are general guidance only, not legal advice. Using this tool does not create an attorney-client relationship, and it is not a substitute for advice from a qualified Arizona attorney. Do not send confidential information through this tool. If you believe someone is in immediate danger, call 911.

Please choose an option to continue.

Assessment complete

Result

Some indicators

FewSomeStrong

Steps to take

Preserve everything. Keep copies of the will, trust, power of attorney, account statements, deeds, and all correspondence. Do not throw anything away.
Request an accounting in writing. Beneficiaries and interested persons generally have the right to a full accounting. Ask for one and keep proof of your request.
Document what you observe. Write down dates, dollar amounts, and the substance of conversations while they are fresh.
Do not sign anything under pressure. Be cautious about signing waivers, receipts, or releases before you understand what you may be giving up.
Avoid self-help. Do not move, withdraw, or hide assets yourself, and avoid confronting or tipping off the fiduciary before you have advice.
Consult an experienced fiduciary litigation attorney promptly. Legal deadlines (statutes of limitation and notice periods) can be short, and acting early preserves your options.

Do

Act promptly; time limits apply
Keep organized copies of records
Stick to facts and dates
Get legal advice before taking action

Don't

Wait and assume it resolves itself
Destroy, alter, or hide documents
Retaliate or air the dispute on social media
Sign releases or waivers without counsel

Please note: Your answers are not saved or transmitted. Results are general guidance only, not legal advice. Using this tool does not create an attorney-client relationship, and it is not a substitute for advice from a qualified Arizona attorney. Do not send confidential information through this tool. References to Arizona law are general and are not a legal conclusion about your situation. If you believe someone is in immediate danger, call 911.

Talk with an Arizona fiduciary litigation attorney

If you would like a professional to review your situation, Berk Law Group is here to help.

Schedule Your $500 Consultation Call 480.607.7900

Learn more about Arizona fiduciary litigation ›

Contacting us does not establish an attorney-client relationship. Do not send confidential information through online forms.

What Is a Fiduciary, and a Fiduciary Duty?

A fiduciary is anyone the law entrusts to act for the benefit of another person rather than for themselves. In the probate, trust and estate context, the most common fiduciaries are:

Trustees, who manage trust assets for the beneficiaries under the Arizona Trust Code.
Personal representatives (executors and administrators), who collect, protect and distribute the assets of a deceased person’s estate.
Agents under a power of attorney, who handle the financial or health-care decisions of a living person.
Guardians and conservators, who are appointed by the court to make personal or financial decisions for a minor or an incapacitated adult.
Custodians, trust officers and others who hold or control assets for someone else’s benefit.
De facto fiduciaries, meaning anyone who assumes a duty to act for, or who is actually acting on behalf of, someone else, such as a de facto guardian or conservator.

Every fiduciary owes a core set of duties: a duty of loyalty (to act solely in the beneficiary’s interest, not the fiduciary’s own, unless some narrow exception applies), a duty of prudent administration and care, a duty of impartiality among beneficiaries, a duty to keep accurate records and account, and a duty to keep beneficiaries reasonably informed.

When a fiduciary ignores these obligations, through self-dealing, neglect, secrecy, or outright theft, the law provides powerful remedies. When a fiduciary is unfairly accused, the law also provides defenses, and a fiduciary who acted reasonably should not bear personal liability.

We Represent Both Sides of Fiduciary Disputes

Beneficiaries & Interested Persons

If you are a beneficiary, heir, or other interested person who believes a fiduciary is mishandling assets, hiding information, favoring themselves, or breaching their duties, we can help you demand an accounting, recover losses, remove the fiduciary, and hold them personally accountable.

Trustees, PRs, Agents & Fiduciaries

If you serve as a trustee, personal representative, agent or conservator, you face real personal exposure. We defend fiduciaries against breach claims, defend or pursue accountings, seek court approval and instructions, and help you administer the matter correctly so you are protected.

Because we regularly represent fiduciaries and beneficiaries alike, we understand how each side builds and defends a case. That perspective is a meaningful advantage whether we are pursuing a claim or defending one.

Watch: What Arizona Beneficiaries Can Do About a Bad Trustee

Common Fiduciary Litigation Matters We Handle

Following are examples of fiduciary disputes our attorneys handle throughout Arizona. Many matters involve more than one of these issues at the same time:

Breach of fiduciary duty by a trustee, personal representative, agent or conservator
Self-dealing, commingling, and conflicts of interest
Removal of a trustee, personal representative, agent, guardian or conservator
Demands for, and disputes over, accountings and financial records
Trustee surcharge actions to recover losses caused by mismanagement
Power of attorney abuse, where an agent exceeds authority or acts for personal gain
Financial exploitation of a vulnerable adult by someone in a position of trust
Elder abuse and neglect claims
Recovery of assets wrongfully transferred out of an estate or trust
Disputes over non-probate transfers, joint accounts and beneficiary designations procured by a fiduciary
Defense of fiduciaries against claims by beneficiaries

Berk Law Group Attorney-Created Free Arizona Legal Tools

Explore how Arizona law may apply to your situation:

💰 Financial Exploitation Assessment → 👥 Guardianship & Conservatorship Assessment → 📝 Do I Need to Open Probate? → ⚖️ Intestacy Calculator →

Trustees: Duties and Liability Under Arizona Law

Under the Arizona Trust Code, a trustee must administer the trust in good faith, solely in the interests of the beneficiaries, and with the care, skill and caution of a prudent person. A trustee must keep adequate records, keep trust property separate, avoid conflicts of interest, treat beneficiaries impartially, and keep qualified beneficiaries reasonably informed about the administration of the trust.

When a trustee breaches those duties, Arizona law gives the court broad authority to fashion a remedy. The court may compel the trustee to perform, enjoin a breach, compel an accounting, void improper transactions, impose a constructive trust, trace and recover trust property, suspend or remove the trustee, and reduce or deny compensation.

Critically, a trustee who commits a breach is personally liable for the greater of the amount needed to restore the trust’s value and distributions to what they should have been, or the profit the trustee made from the breach. This is the heart of a trustee surcharge claim.

Personal Representatives: Duties and Liability

A personal representative of an Arizona estate is a fiduciary who must settle and distribute the estate as efficiently as is consistent with the best interests of the estate, and who is held to the same standards of care that apply to a trustee.

If a personal representative exercises power improperly, they may be personally liable to interested persons for any damage or loss resulting from a breach of fiduciary duty. Interested persons can also petition the court to remove a personal representative for cause, such as mismanagement, waste, conflicts of interest, or failure to perform required duties. We pursue and defend these claims and help personal representatives administer estates the right way to avoid liability in the first place. You can read more about the primary duties of personal representatives in Arizona.

Agents Under a Power of Attorney

An agent acting under a financial power of attorney is a fiduciary who must act loyally and within the scope of the authority granted. Abuse of a power of attorney, such as using the principal’s money for the agent’s benefit, making unauthorized gifts or transfers, or failing to account, is one of the most common forms of fiduciary misconduct, and frequently overlaps with the financial exploitation of a vulnerable adult.

We help families investigate suspected abuse, demand an accounting from the agent, set aside improper transfers, and recover what was taken. Learn more about Arizona powers of attorney.

Financial Exploitation of Vulnerable Adults

When the person harmed is elderly, disabled, or otherwise vulnerable, Arizona law is especially protective. A person in a position of trust and confidence must use a vulnerable adult’s assets solely for that adult’s benefit. A violation can expose the wrongdoer to significant additional damages plus court costs and attorneys’ fees under A.R.S. § 46-456, a powerful tool for recovering what was taken and deterring abuse.

If you suspect that a caregiver, family member or fiduciary is exploiting a vulnerable loved one, our attorneys can help you act quickly. Read more about financial exploitation of vulnerable adults in Arizona.

Remedies Available in Fiduciary Litigation

Depending on the facts, the court can order a range of remedies in fiduciary disputes, including:

Surcharge: a money judgment against the fiduciary to restore losses caused by the breach
Removal and replacement of the fiduciary
A compelled accounting of all receipts, disbursements and transactions
Recovery of property through constructive trust, lien, or tracing of misappropriated assets
Disgorgement of profits the fiduciary made from the breach
Reduction or denial of fiduciary compensation
Injunctive relief to stop ongoing or threatened misconduct
Additional (and in some cases multiplied) damages, costs and attorneys’ fees in vulnerable-adult exploitation cases

Just as often, the right outcome is reached through negotiation, mediation, or a settlement that protects relationships and avoids the cost and exposure of a trial. We will help you weigh the options and choose the approach that best fits your goals.

Why Berk Law Group for Fiduciary Litigation?

Focused experience. We concentrate on probate, trust, estate and fiduciary litigation. This is not a sideline for us.
Both sides of the “v.” We represent fiduciaries and beneficiaries, so we know how the other side thinks.
Recognized excellence. AV Preeminent rated by Martindale-Hubbell, with attorneys recognized by Super Lawyers.
Direct attorney attention. We are small by design. You work directly with an experienced attorney, not a rotating cast of paralegals.
Trial-ready, settlement-smart. Most of our attorneys have actual trial experience, and we are strong negotiators when settlement serves you better.

Our clients consistently tell us that our customer service, responsiveness, attention to detail, and straightforward counsel set us apart. Read our actual client reviews to hear what they have to say.

“Kent and his team were very professional and reliable. They assisted me with my father’s probate during a difficult time of loss and grief. Our case had a challenging opposing party, but this team handled it in a strong and confident manner. I would recommend them for any litigation regarding probate, as their legal team is well versed with this subject and are willing to put in the time and effort to fight for you/your loved ones.”

Chelsea Denny

What to Do If You Suspect a Fiduciary Is Breaching Their Duties

If something feels wrong with how a trustee, personal representative, agent or conservator is handling assets, trust your instincts, but act carefully. What you do in the first days and weeks can protect your rights and preserve the evidence a court will need later. Here is a practical checklist.

Warning Signs a Fiduciary May Be Breaching Their Duties

Refuses or repeatedly delays providing an accounting or financial records
Stops communicating, dodges questions, or won’t share a copy of the trust, will, or power of attorney
Missed, delayed, or unequal distributions to beneficiaries
Uses trust or estate assets for personal benefit (self-dealing)
Commingles trust or estate funds with personal accounts
Unexplained transfers, gifts, loans, or cash withdrawals
Sells or transfers property below market value, or to family, friends or insiders
Pays themselves excessive fees, or hires relatives at the estate’s expense
Last-minute changes to beneficiary designations, deeds, or account titling near the time of death or incapacity
Openly favors one beneficiary over another

Steps to Take

Preserve everything. Keep copies of the will, trust, power of attorney, account statements, deeds, and all correspondence.
Request an accounting in writing. Beneficiaries and interested persons generally have the right to a full accounting. Ask for one and keep proof of your request.
Document what you observe. Keep a timeline of events, including dates, dollar amounts, and the substance of conversations while they are fresh.
Don’t sign anything under pressure. Be cautious about signing waivers, receipts, or releases before you understand what you may be giving up.
Avoid self-help. Do not move, withdraw, or hide assets yourself, and avoid confronting or tipping off the fiduciary before you have advice.
Consult an experienced fiduciary litigation attorney promptly. Legal deadlines (statutes of limitation and notice periods) can be short, and acting early preserves your options.

Do

Act promptly; time limits may apply
Keep organized copies of records
Stick to facts and dates
Get legal advice before taking action

Don’t

Wait and assume it will resolve itself
Destroy, alter, or hide documents
Retaliate or air the dispute on social media
Sign releases or waivers without counsel

Not sure whether what you’re seeing is a real breach? An experienced fiduciary litigator can review the facts and tell you where you stand. Call 480.607.7900 or schedule your consultation.

Schedule Your Consultation Call 480.607.7900

Frequently Asked Questions About Fiduciary Litigation

What is a breach of fiduciary duty?: It occurs when a trustee, personal representative, agent, guardian, conservator or other fiduciary fails to meet their legal obligations, for example by self-dealing, mismanaging or misappropriating assets, failing to account, favoring one beneficiary over another, or keeping beneficiaries in the dark. The fiduciary can be held personally liable for the resulting losses.
How do I remove a trustee or personal representative in Arizona?: You file a petition with the probate court. A trustee may be removed for a material breach of trust, lack of cooperation among co-trustees, or unfitness or persistent failure to administer the trust for the beneficiaries’ benefit. A personal representative may be removed for cause, such as mismanagement or breach of duty. We can evaluate whether removal is the right strategy and pursue it.
What is a trustee surcharge?: A surcharge is a money judgment imposed on a trustee to compensate the trust and its beneficiaries for losses caused by a breach of trust. The trustee is liable for the greater of the amount needed to restore the trust’s value or the profit the trustee gained from the breach.
Can a fiduciary be forced to provide an accounting?: Yes. Beneficiaries and other interested persons generally have the right to demand a full accounting, and the court can compel one. A missing, vague or incomplete accounting is often the first sign of a deeper problem and a frequent starting point for fiduciary litigation.
I am a trustee or executor being accused of wrongdoing. Can you help me?: Yes. We regularly defend fiduciaries who acted reasonably and in good faith but are facing claims from unhappy beneficiaries. We also help fiduciaries seek court approval, instructions, or a declaratory ruling so their conduct is protected in advance.
How are attorneys’ fees handled in fiduciary disputes?: It depends on the type of case. Typically, the trustee or personal representative is entitled to pay their attorneys’ fees from the trust or estate. In some trust and estate matters the court has discretion to award fees from the trust or estate or against a party, and in vulnerable-adult financial exploitation cases the statute specifically allows recovery of costs and attorneys’ fees against the exploiter. We will discuss the fee structure and potential fee recovery for your specific situation.
How much does a consultation cost?: We offer a paid initial consultation in which an experienced attorney reviews your situation and gives you straightforward guidance on your options. Call 480.607.7900 to schedule.

Serving Scottsdale and All of Arizona

Berk Law Group, P.C. represents fiduciaries and beneficiaries throughout Maricopa County and across Arizona, from Phoenix, Mesa, and Chandler to Tucson, Flagstaff, and Prescott. Wherever you are located, you receive the same hands-on attention from our Scottsdale-based team. You can also read the Arizona Probate Code and Arizona Trust Code in Title 14 of the Arizona Revised Statutes.

If you are facing a fiduciary dispute, on either side, call us at 480.607.7900 or contact our office to schedule your consultation.

Related Practice Areas

This page is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Outcomes depend on the specific facts of each matter.