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Asked 7 months ago - Seattle, WA
FlagMy wife and I are in the process of establishing who should be the guardian of our minor children and who should be the trustee for the children's trust. Our inclination is to have my wife's sister be the former and my brother be the latter. How important is it that those two individuals cooperate while our children are minors? The trustee is directed to pay for the health, education, maintenance and support of our children, but I presume the guardian would typically have some ability to request funds. What happens if those two people disagree? Our concern is that these two people have different values and morals and haven't been very friendly towards each other in the past.
True, a guardian and a trustee would have very different roles. In my opinion, it is the guardian who should most reflect your values, as it is she or he who would see to the children's education and well-being as they grow up if both parents were to die or become disabled (a very unlikely scenario). The trustee handles the money, perhaps well into the children's adulthood (depending on how you structure the trust). The trustee would have to provide the funds (and their investment) for the support of your children.
Outright hostility between trustee and guardian is one thing, but I would not be too concerned if there is merely a difference in approach or even values between the guardian and the trustee. Better to 1) choose a loving, supportive and wise guardian and 2) build the right safeguards into the trust. The trustee has an absolute fiduciary duty to carry out the requirements of the trust to the benefit of the beneficiaries regardless of his relationship with the guardian.
Note that a too-cozy relationship between trustee and guardian can work against the kids' benefit -- imagine if they were the same person, or husband and wife. Some arm's length between the guardian and the trustee can be positive between these two very different roles.
One caveat: I have been speaking generally, not specifically to your particular needs. You will need to get estate planning advice from a skilled estate planning attorney.
Best of luck!
My colleagues are correct. While there is no legal basis to preclude the two from the positions you are considering, you may want to reconsider. It would make life for your children less awkward and stressful if the guardian and trustees were congenial with one another. If you know there is hostility that exists between the two, it is likely to spillover into their roles in your children's lives. Just a point to consider.
I agree with Attorney Groseclose. Since you already have indications that the people of choice do not get along, naming them in these respective capacities is a recipe for squabbling and strife. The need for agreement and cooperation is probably not great, but when you consider that the guardians, who are after all providing the day to day care of your children, would need to request funds and perhaps other assistance from people who are predisposed to being hostile to them, it would be an awkward arrangement, at best. I would think on this long and hard.
James Frederick
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