When you’re getting ready to put together your last will, one of the first set of questions that will be posed by your attorney is, “Who would you like to name as your _______?" What is the “_____", you ask? Well, I’ve intentionally left the balance of that question blank because, generally speaking, it may not be just one role you’re being asked to select. Most individuals who put together an estate plan will name parties to serve in two if not three separate roles. For this reason, one of the critical responsibilities that people face when creating an estate plan is ensuring that they’ve nominated individuals that they not only trust, but who have the wherewithal to ensure that their last wishes are carried out. So what exactly are the roles we’re talking about? The three main categories that typically need to be named are: executor, guardian and trustee.
Regardless of whatever else might be contained in a last will, the one constant is that they all name an executor. By way of description, an executor is that individual, individuals or institution that you elect to name in your will as your estate’s personal representative once you pass away. Executors not only have many duties, but they will wear many different hats throughout the course of the probate process. For simplicity’s sake, an executor is charged with not only marshaling, preserving, growing and liquidating the assets of the estate, but distributing the assets in accordance with your last wishes.
An important fact to remember is that those serving as executors are serving in a fiduciary relationship, meaning that you’ve placed your confidence in them with regard to your last wishes. There are strict prohibitions against fiduciaries engaging in self-dealing or other improper conduct that would harm the estate. Fiduciaries must at all times deal honestly with matters related to the estate and its assets.
For obvious reasons, and in particular the magnitude of power that an executor wields over your estate, it’s a wise idea to select individuals to fill this role that you trust implicitly. There is no question that the responsibilities placed upon an executor are significant, but he or she will likely not be in it alone. In addition to your estate’s attorney, most individuals make explicit provisions that they expect their executors to utilize professionals to assist in the preservation of the estate and to move it forward toward being closed out. Executors routinely utilize the services of CPAs, financial advisors, realtors and the like to assist with the administration of the estate.
The duty of naming a guardian is one that is generally reserved for those individuals who have minor children that will need to be cared for in the event they pass before the children reach the age of majority. As the name might imply, a guardian is that person or persons you appoint to raise and nurture your children until they come of age. While the responsibility of handling your estate might seem significant, I think few people would argue that the selection of who will take care of your children if you pass is one of the most significant decisions that any parent faces when crafting an estate plan.
That said, there are obviously many considerations that I would urge individuals to consider when selecting a guardian, but I trust that each of you will reach the right choice when the time comes to make that decision. There is one thing you should never forget, however, and it’s a point I always try drive home. Unless you act to choose who you want to raise your children when you pass, you need to face the stark reality that the decision will be left in the hands of the Surrogates Court. If you were around to bear witness, there would be a good chance that you would not like the Court’s choice, but it would be out of your hands because you didn’t act. Only you have the power to state your last wishes and give them real and lasting effect before the time passes when you’re able to do so. It’s never too soon to put plans in place, and I would urge everyone to do so sooner than later.
A common trait of many wills is the inclusion of a testamentary trust. These are trusts that are provided for in a will but which do not come into fruition until the testator passes away. They can be set up for a myriad of reasons, but most typically as a planning tool for a minor child or sometimes as just a device to control a beneficiary’s access to inherited funds. Whatever the testator’s reason for creating the trust, it will need to be managed, and that responsibility falls to the shoulders of the trustee you name in your will.
The role of a trustee is much like that of an executor, in that he or she is expected to act as a fiduciary while managing and growing the assets of the trust. The same considerations that go into choosing an executor are transferable across dimensions when picking a trustee. It’s generally wise to entrust the duties appurtenant to the role with someone well-grounded, knowledgeable and perhaps even with a basic understanding of finances under his or her belt, although the trustee (like the executor) will hopefully have the benefit of working with professionals to ensure the trust is managed properly.
Planning for your final wishes can be a difficult proposition, if for no other reason than you’re forced to address the unknown and the inevitable. While it won’t fully alleviate whatever stresses you might be feeling, choosing competent, trustworthy individuals to serve as your executor, guardian and trustee should hopefully provide some measure of relief that your wishes will be carried out. When it comes time to choosing individuals, one question that is often asked is can and/or should these roles be filled by the same individual(s)? The answer is yes – the roles can be served by the same person(s), but the question of “should they" is another story entirely. That answer depends on your particular circumstances, and should be sussed out with your attorney.