How to Select the Right Executor or Trustee of Your Estate

When I meet with clients to establish estate planning, I find that a surprising number of people mistakenly believe that they must name their elder in their will or trust as responsible for their estate. Even those who understand that they are not legally required to do this may think that they are supposed to designate their elder for this task. There may have been a time when social norms dictated this outcome, but those days are long gone, and today I speak in detail to my clients about who is the right type of person to put in charge of their succession. Let’s go over some of the factors to consider.

Before we discuss these factors, let’s remember what estate planning documents we think of when we consider naming someone responsible for your estate after your death. We are thinking of either a “Last Will” (“Will”) or a “Revocable Living Trust (“Trust”). A will is a document you use to outline what should happen to your property and assets when you die, as well as who should carry out the instructions you leave behind. The person you have given responsibility for your estate under a will is called a “personal representative” or “executor.” This person will work under the supervision of the probate court judge to administer your estate.

Not everyone has a trust, but those who do try to avoid having their estate go through a court-controlled process called probate. If you use a trust, you will give instructions similar to those in a will, but the person you leave in charge of the estate through a trust is called your “successor trustee.” This successor trustee will have the same types of duties and responsibilities as an executor under a will, but will not need to go through the formal court-supervised probate process to accomplish these tasks.

The type of person who makes a good candidate for the position of executor or successor trustee is someone in whom you have a high degree of trust, someone who is capable, self-reliant and organized, and someone who can successfully navigate the relationships of other family members and beneficiaries of your estate.

You really have to trust the person you put in your position. Although your trust will may provide detailed instructions to your executor or successor trustee, in almost all administrations of an estate there are many discretionary decisions that that person must make for themselves. Let’s take the simple example of selling your home in order to distribute the proceeds to your designated beneficiaries. Discretionary decisions will need to be made about whether to use a real estate agent, which real estate agent to use, what the listing price should be, when to list the property, what types of offers to consider, which offer to accept , what are the conditions of acceptance. of the offer must include (repairs to the home, timing of sale, amount of earnest money that will be required, inclusion or exclusion of back-up offers, etc.). And this is just one of the many decisions that someone charged with managing an estate often faces.

You must therefore be confident that the person you have selected will do their best to honor your wishes and attempt to achieve the desired results in the best interests of the beneficiaries of your estate. All of this is often complicated by the fact that the person you left in charge may themselves be one of the beneficiaries of your estate.

Next, you need to select someone who can handle the type of tasks they will be called upon to perform. Someone who doesn’t take charge or lets situations drag on without resolution is a poor choice for these jobs. Procrastination rarely makes estate administration better for anyone. Additionally, this person must be organized and detail-oriented, or be willing to have an attorney be organized and detail-oriented for them. Record keeping is very important in estate administration, as is time management. For this reason, geographic proximity to where you resided at the time of your death can be a good practical consideration when appointing the person responsible for your estate (although technological advances have certainly reduced the importance of this particular factor ).

Finally, determine who all the people will be who will have an interest in your estate or legal rights to be informed of its administration. These parties may include your children (or stepchildren), other family members, your non-family beneficiaries (if applicable), charities you donate to, etc. Does the person you are responsible for know all of these parts? ? Do they get along well with each other? Do they have long-standing personal grievances with any of them? The dynamic between your executor or successor trustee and other people or entities who will be involved in the administration of your estate should be carefully considered when you are appointed. Don’t set everyone up for disaster and costly courtroom drama by pitting two or more feuding family members against each other if you can avoid it!

And two additional considerations: What about using two or more people together as co-executors or co-successor administrators? And what about using a professional third party who will be paid for their services? Both of these approaches are legal and both have advantages and disadvantages that should be carefully considered. Don’t force two or more candidates to work together if you know they won’t agree on certain issues, because they will end up fighting in court. Consider using a third-party professional if the estate is large enough to warrant it (most professionals charge a percentage of the value of the estate and require a minimum value of at least $250,000 to $500,000), and especially if it is the best way to avoid conflicts within the estate. your family after your death.

My law firm currently offers free telephone, electronic, or in-person consultations regarding the creation or review of estate planning documents.

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Robert J. Green is a law, trust, probate, probate and guardianship attorney and owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning or VA benefits planning, contact Robert at 208-765-6555, [email protected], or visit www.KootenaiLaw.com.

This has been presented as general information and not legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific situation.