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Naming Fiduciaries in a Will

Posted by attorney Thomas Begley

Naming Fiduciaries There are three primary fiduciaries that can be named in a will. In every will, an executor is named. In some states, this role is referred to as the personal representative. The executor can be an individual or a corporate entity, or a combination of both. The role of an executor is to marshal the decedent’s assets, pay any liabilities lawfully assessed to the individual or his estate, and to distribute the net estate to the estate beneficiaries.

When the beneficiary is a trust, rather than an individual, a trustee should be appointed. A trustee administers and makes payments from a trust to the trust beneficiaries, which may be either individuals or charities, subject to the directions set forth in the will. Like an executor, a trustee may be either an individual or a corporate entity, or a combination of both.

When an individual has minor children, or has a disabled adult child, a guardian may be named. In the case of a minor child, the role of the guardian is to make personal and medical decisions on behalf of a decedent’s minor child until that child attains the age of majority. Many individuals mistakenly believe that the guardian has a financial role as well. This assumption is flawed. Funds for a minor child are managed in trust by a trustee. The client may decide whether or not the guardian or trustee be the same or different.

In the case of a disabled individual, a guardian is typically named as persuasive evidence to name an alternate guardian when a testator dies. Basically, when an individual becomes an adult, he or she is generally recognized as emancipated even if he or she is mentally incapacitated. Parents can become legal guardians upon application to the court system. In order to name a successor guardian, in the event of the parents’ death, a preference may be stated in the will.

A prudent attorney should distinguish between the aforementioned roles to his or her clients. Moreover, the attorney should discuss the need for a client to make wise choices. Many executors are chosen because of their age, gender and proximity to the decedent. Such selections are inappropriate as none detail the qualifications needed to fill the fiduciary role. An attorney must emphasize the need to appoint a qualified representative rather than merely asking for a name.

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