Choosing an Executor, Trustee and Guardian

Clients frequently ask me who they should name as Executor, Trustee or Guardian when they create their Last Will and Testament.  First, let me explain the difference between the three roles.

The Executor is the person who probates your Will, goes into your house and through all of your personal belongings, safeguards your assets, gathers your money, pays your bills, sells your real estate or automobiles, files any income tax, estate tax or inheritance tax returns that need to be filed, and then distributes the balance of your money according to the instructions in your Will.  One or more individuals or corporate fiduciaries can serve as Executor.

The Trustee is the person who takes the assets that the Executor (or Grantor) gives him, invests the money in a prudent fashion, and distributes the money to the beneficiary of the Trust in accordance with its terms.  One or more individuals or corporate fiduciaries can serve as Trustee.

The Guardian is the person who will raise your minor children until they are 18 (or longer for an incapacitated individual).

The three main qualities that you want to look for in an Executor and Trust are:

  • Someone that is trustworthy and won’t steal the money;
  • Someone that will not be overwhelmed  by the role, there is a lot of work involved; and
  • Someone that does not have a bad relationship with the beneficiaries and will be able to communicate with them.

You will notice that I did not say the Executor or Trustee must be good at investing money. It certainly does not hurt if they are, but I believe the other characteristics are more important.  An honest person who is diligent can always hire an investment manager.  They just need to keep an eye on the investment manager.

The three main qualities that you want to look for in a Guardian are:

  • Someone that will love and care for your children;
  • Someone that will raise your children in a manner that you wish (including religion, education, diet, etc.); and
  • Someone that will have a stable family household.

Frequently, clients will name one party as Executor or Trustee and another person as Guardian.  Sometimes this can be a good idea as the two parties can then monitor each other.  Additionally, this is a way to get two parts of the family to interact.  However, if there is someone that you truly trust to serve in all three roles, it is usually best to name them and not divide the roles just for the sake of dividing the work.

For all of these positions, age may be a factor as well as you may not want to name someone too young or too old. It is a heavy burden to put on people.  I never, ever recommend naming people just so they won’t feel excluded.  You may also want to speak to the person beforehand to make sure they are willing to accept their role.

Finally, an Attorney can serve as an Executor or Trustee, but you can name whomever you wish. I have been named an Executor a few times when my client either has no relatives or close friends living in the area or they are too old to handle the responsibility.

If you have further questions or wish to have your Will, Living Will and Powers of Attorney prepared please do not hesitate to contact me.

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