by Bruce L. Dorner
One of the most difficult choices my clients confront is who to select as executor of their estate and who should be the trustee to manage funds for their minor children. Let’s start at the beginning. The executor is the person responsible for wrapping up your affairs, paying your bills and distributing your assets in accordance with the instructions in your Will. In some states the executor is also called a personal representative. The executor works with your attorney after your death, and both report to the Judge of the Probate Court.
Many people come to my office believing that they must name their spouse or their oldest child as the executor of their Will. Wrong! In short, the best person to name as executor is the one you trust to do the job responsibly. I often suggest that if fate smiled upon my clients and they were embarking on a year-long trip around the world, who would they pick to pay their bills, keep an eye on their house, and make sure that if something needed attention to simply take care of it.
Often the best choice is your spouse. However, I occasionally come in contact with a family where the spouse doesn’t have the skill to balance a check book. In those cases you need to look a little further. Usually there is a parent, brother or sister who might be a better choice. If you have older children, then consider which child is in the best position to help out in the event of your death. Occasionally, I encounter a family that doesn’t have the benefit of stable, well-adjusted children. Sometimes the family is so blended from marriages and divorces that cooperation amongst siblings is impossible. In those cases you may want to consider naming a friend or neighbor who may be better suited to ensuring that all your bills get paid and your assets distributed as specified in your Will.
On the matter of trustees, it is quite common that if you have minor children, or children that haven’t matured to your satisfaction, to use a Will to segregate some assets or money for the kids. These assets would be managed and paid out by your selected trustee. Again, keep it simple. Who is the best person to understand your goals and objectives regarding distributing money to your kids? This can be quite sensitive if you name your current spouse to manage money for children from prior marriages. However, it may also ensure that the children from prior marriages treat your current spouse with great respect — especially since he or she controls distribution of the kids’ share of the estate!
For those with larger estates or concerns about good management, I often suggest an institutional trustee such as a bank or investment company. However, they don’t know what goes on within your home and don’t have the benefit of your personal philosophy regarding money for your spouse and children. Often, I recommend that you appoint a family member as co-trustee to share in the decision making process. Two heads are better than one!
It is always a good idea to write down any special instructions you would like your executor or trustee to follow. Maybe you want your teenagers to have cars when they show reasonable maturity. However, you might not want them to spend enough to buy a new Jaguar, but only enough to buy a used Ford. Maybe you want to have a portion of your funds applied toward college, but require the child to earn an equivalent amount. Each family is different and there is no “right choice” in selecting an executor or trustee. Be sure to discuss all your concerns with your attorney at the time you prepare your will and estate plan.