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Choosing the Right Fiduciary

December 26, 2011

You’ve decided whom you want to leave your estate to, you’ve hired an attorney, and you’re all set to have a living trust, will, and powers of attorney prepared for you. You go to your lawyer’s office and he or she asks you: “Who would you like to be your trustee? Your executor? Your attorney-in-fact? Your agent for health care?” For many people, this is the first time they have thought about these questions, but these are some of the most important questions in the estate planning process.

All of these people – trustees, executors, attorneys-in-fact, and agents – are “fiduciaries” with respect to the person whose benefit they are charged with serving. A fiduciary owes duties involving good faith, trust, special confidence, and candor towards another. Trustees owe these duties to trust beneficiaries; executors, to the heirs under a will; attorneys-in-fact and agents, to their principal. Without knowing it, many people already have a fiduciary relationship with someone else in their lives; spouses, for example, owe fiduciary duties to each other. Put plainly, fiduciaries must exercise the highest level of care and trust to the persons to whom they owe duties.

In choosing the right fiduciary, it is important to consider the seriousness of the responsibility and duties involved. This is as much a practical question as a legal one. If your eldest child is heavily in debt and has a track record of financial missteps, he or she may not make a good fiduciary. If you have children from at least two different relationships, and intend on leaving a share of your estate to all of them, you should consider whether these children get along with each other prior to choosing one of them as a fiduciary. If you have a child with special needs, for whom constant care and supervision will be required, you should consider who in your family, if anyone, would be attentive enough to cater to those needs. In all cases, you should consider your family’s dynamic and relationships, and perhaps discuss the “job” with your prospective nominees prior to naming them in your trust, will, or other document. Sometimes, it may be prudent to nominate a private professional fiduciary or a financial institution, as opposed to a family member.

There is no general answer to the question of “who should be your fiduciary?” You must take the time to carefully analyze the facts of your specific situation before choosing a fiduciary. Doing so can help save your estate and your family’s relationships down the road.


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