- The oldest child doesn’t have to be the default choice for the role of executor or successor trustee.
- Dividing responsibilities between family members can create more conflict than solutions.
- A professional fiduciary can be a smart alternative to avoid family tension.
- Careful consideration when choosing the right person can ensure your wishes are carried out.
When it comes to creating your estate plan, one of the crucial decisions you will need to make is how to split responsibilities among your loved ones. It is often assumed by many parents that their oldest child should automatically take on the role of executor or trustee, or maybe the child who lives closest to them, or possibly the responsibilities should be divided between siblings. However, this decision should be made with care and each approach could be right depending upon the circumstances.
A common mistake many people make is simply naming the oldest child out of a sense of obligation or guilt. However, age alone should not necessarily qualify them for the role. It’s essential to consider each child’s communication skills, responsibility level, familiarity with your affairs, trustworthiness, and ability to manage financial matters effectively.
Take these client situations as an example:
Client 1: This client had two children—a son and a daughter. The son had a big ego and felt he needed to be in control, and he would have taken it personally if he wasn’t. The daughter, on the other hand, was more level-headed and more capable of handling legal paperwork. To keep the peace, the client decided to nominate the daughter as the trustee in charge of the Trust and the son as the executor, or Personal Representative, in charge of the Will. After the client passed away, the daughter began her duty as the trustee, but the son completely disengaged and did not hold up to his role as the executor. He didn’t respond to their attorney, caused unnecessary delays, and resented the way the estate plan was structured. As a result, even though the daughter was ready to move forward, she was held back by the brother’s absence, further delaying the estate administration process. To make matters worse, the relationship between the two children was fractured and was never the same.
Client 2: Another client, an older woman, had two sons. The older one had always been difficult and controlling of the mother, while the younger one was calm, caring, and level-headed. Despite this, the mom felt pressured to name the older son as the executor because it was “traditional” and the way that her parents had done it. She even considered naming both sons, hoping that would balance things out. However, the two sons rarely spoke and had a complicated relationship. Putting them in charge together would only lead to chaos down the line for everyone involved. If they don’t get along now, it’s unlikely they’ll work well together after she’s gone.
These two client stories are a great reminder that when it comes to estate planning, choosing the right people for the job matters more than tradition. It’s more important to pick the right individuals for the right positions, someone who is level-headed, reliable, and capable of handling the responsibility during a stressful time.
There are also other aspects to consider beyond personality traits, such as time constraints, location, familiarity with your affairs and wishes, past experiences, and their own life circumstances. For example, one child may have young children of their own to care for, or they may be running their own business, or maybe they are an adult caregiver for another family member. These factors can affect their ability to fulfill fiduciary duties effectively.
Often, people will want to divide responsibilities among children to make it fair. However, this approach can also lead to unintended complications. For instance, naming different individuals to serve as executors under your will and successor trustees under your living trust can cause roles to overlap, leading to conflicts and delays in carrying out your wishes. In some cases, this setup can even result in costly legal disagreements within the family, as each person might have their own interpretation of your intentions.
If you find it challenging to choose between your children or you want to avoid future potential family conflicts, naming a neutral third-party or professional fiduciary as your executor or trustee can be a wise alternative. This can assist in maintaining family peace and ensure that your wishes are carried out as you intended. A professional fiduciary can provide peace of mind as you will know that your estate will be managed expertly and without bias.
Splitting responsibilities in your estate plan requires careful consideration of various factors beyond age or birth order. By evaluating each potential executor or trustee based on their abilities and circumstances, you can make informed decisions that safeguard your assets and maintain family harmony. Ultimately, choosing a neutral third-party or professional can be a practical solution to avoid conflicts and ensure the smooth management of your estate.
Frequently Asked Questions
What kind of duties will the person I choose need to carry out?
The duties depend on the role you choose for this individual. Whether it is an executor or a trustee, the role involves tasks such as collecting and managing assets, paying off debts, filing taxes, distributing assets to beneficiaries, handling legal paperwork with the court, communicating with lawyers, and keeping accurate records all while following your estate plans instructions. It is clear this role requires someone who is organized, communicates well, and is responsible. Learn more about the Roles & Responsibilities in our on-demand webinar: [insert link]
Can I choose more than one person to carry out my wishes together?
Yes, you can split responsibilities between individuals, but it’s important to consider a few things–It’s best to assign roles based on each person’s strengths and what they’re capable of handling. It’s also important that the individuals you choose get along and are able to manage any potential conflicts together. Navigating probate, handling finances, and distributing assets to beneficiaries can be stressful and may lead to delays or disagreements, so strong communication is essential. Sometimes, it may actually be better to appoint one highly capable person rather than divide the roles between two individuals.
What qualities should I look for in an executor or trustee?
Look for someone who is organized, responsible, communicates well, and can navigate emotional situations. It is also helpful if they have financial knowledge or past experience settling an estate and have the capability of handling legal paperwork. This individual will need to work with attorneys, accountants, and other professionals.
Should I choose a professional fiduciary instead of a family member to handle my estate?
It is definitely a good option for many of our clients. You can appoint a professional to manage your estate after you are gone, especially if you are concerned about family dynamics or don’t want to burden a family member with this big responsibility. By putting a professional in charge, you can ensure they stay neutral and are capable of handling any legal duties.
What happens if the person I appoint doesn’t hold up to the role?
If the person you’ve chosen doesn’t follow through with their duties or fails to carry out their role, the court may step in. If you’ve named a backup trustee or executor, the responsibility would pass to them. However, if no replacement has been assigned, the court will appoint someone they believe is capable, which may go against your original wishes. That’s why it’s so important to choose someone reliable from the start and to make sure that capable alternatives or back-ups are selected as well.
Contact Caress Law
Ready to create or update an existing estate plan that truly reflects your intentions and minimizes family conflicts? Talk to an expert attorney today to start your estate planning journey. Your peace of mind starts with the right guidance. Call us at (503) 292-8990 or fill out the contact form below.
