Have you selected the Right Person as your Trust: Caution: Your Decision Matters

HNW Elder Law, Estate Administration and Probate, Estate Planning, Will Contest and Probate Litigation

By Fredrick P. Niemann, Esq., a NJ Trust Attorney

When creating an estate plan under your will, an important decision you will have is who to name as your fiduciary. By fiduciary, I mean your Executor under your Lat Will and Testament.  A fiduciary is a fancy legal term for the person who will take care of your assets and Estate if you are unable to do it yourself, such as the 1) executor of an estate, 2) the trustee of a trust, or 3) an attorney-in-fact under a power of attorney. Your first reaction might be to name one of your children as a fiduciary, but if you want to avoid conflict among your children, this might not be the best option.

When naming a fiduciary, be confident you can trust the individual.  This is why people often name family members as fiduciaries. However problems can arise when a parent with two or more children names one child as a fiduciary. According to Fredrick P. Niemann, an attorney from Freehold, New Jersey, who spoke on the issue of family harmony at a recent trust seminar, a child is often not the best fiduciary for several reasons:

• It is hard for a child to be completely objective.
• Children often disagree over many things, including how long the estate should take to complete, the selling of assets, and  the division of personal property.
• Children often don’t communicate with each other well.
• Unresolved lifetime rivalries.

An alternative is to hire a professional fiduciary. A professional fiduciary can be a bank, investment firm with trust administration experience with trust powers, a certified public accountant, or a trust company. A professional fiduciary will charge a fee, but the fee is established ahead of time. In addition, because a professional is experienced in managing money and property, your assets are more likely to increase under this person’s or institution’s guidance.

To ensure that your family remains partially involved and has some input, you can include a provision that allows one or more family members to discharge the fiduciary if they feel the professional is not doing a good job. This will allow your family to make sure the fiduciary is performing properly without having the burden of acting as fiduciary.

For further information and advice in estate planning with living ,revocable trust, do not hesitate to contact me toll-free at (888) 800-7442, or e-mail me at fniemann@hnlawfirm.com/.  We can meet to discuss your questions and issues.

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