Downs Law Firm, P.C.

selecting an executor

Selecting an Executor (or Trustee)

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Selecting an Executor (or Trustee)?

If you can’t pay your bills due to injury or death, selecting an Executor (or Trustee), often proves to dictate how well the plan will work. Who do you pick as the quarterback?

In a Will, Trust, or Power of Attorney, you must select a money managing chain of command. Who are you going to hand the checkbook to?

Although the role has different names for different documents, the considerations are the same. They all serve as  fiduciary, who you trust to stand in your shoes and act for you when you can’t. In a Power of Attorney, this fiduciary role is called an “Attorney-in-Fact”; for a Last Will and Testament, this is an executor, and for a trust, it’s the trustee.

Selecting fiduciaries becomes more accessible when the role is understood. A fiduciary is someone empowered to control different assets for another person, usually the intended beneficiary of the assets. The fiduciary must put the fiduciary’s interests aside and act in the beneficiary’s best interest, even when doing so is contrary to the fiduciary’s interests.

Who Can Be a Fiduciary?

A fiduciary can be anyone with legal capacity, including family members. Suppose you are not comfortable with a relative controlling your assets as a fiduciary. In that case, you may prefer to have a non-family member or even a financial institution serve in that role. For example, an estate planning attorney is a fiduciary by the nature of her legal and ethical obligation to act in the best interest of her clients. Still, an attorney also may serve as a fiduciary for an estate, a person, or a trust.

The fiduciary appointed to administer a trust and manage its assets is a trustee. If the trust is created under your last will and testament to administer the inheritance for your beneficiaries, then such trust is known as a “testamentary” trust. On the other hand, if the trust is created under your revocable trust established during your lifetime, then the inheritance trusts come into play upon your death. Both inheritance trusts are irrevocable; the difference is that the “testamentary” trust requires probate, and the other does not.

The fiduciary nominated by you to carry out the probate and administration of your Last Will and Testament is an executor (or personal representative). The executor must first receive permission from the court to carry out the executor’s responsibilities. Their authority to act comes into effect only after the last will has been presented for probate and the court appointments that person to serve.

How Do I Select the Best Candidate to Be My Fiduciary?

Ordinarily, the person doesn’t need to be a financial expert: pick someone honest and reliable. They can hire experts, but there is no substitute for character.

Selecting a fiduciary to take care of your financial and legal decisions at incapacity or death can be more complicated than deciding who you want to inherit your estate. If your family includes multiple marriages or has had long-standing conflicts among siblings, an impartial professional or institution may be a better choice.

Selecting a fiduciary from an online platform is not recommended, but researching candidates online does make sense. Fiduciaries do not all have the same professional credentials. Conduct your due diligence and comparison shop.

A recommendation from a trusted legal or financial professional, supported by research into the background of the potential fiduciary and a conversation that includes the question “Are you a fiduciary?” is how most people find their fiduciary.

What Should I Consider When Picking a Fiduciary?

Trust. Do you trust this person or institution to make decisions for you and carry out your instructions, even if it is not the same decision that person or institution would choose?

Skilled with asset management. A fiduciary must have a broad skill set in managing investments, real property, and personal possessions. They need to be able to handle complex transactions from beginning to end.

Able to work with your heirs. The fiduciary needs to be able to balance a good working relationship and deal with challenges, including personality clashes. Not all heirs appreciate having an outsider manage their inheritance.

Closing Thoughts

When selecting an executor, Trustee, and Attorney-in-FactHalf the battle in getting a task done is picking the right person for the job. A key topic that we discuss at length with clients and revisit frequently: Who fits the bill?

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