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Estate Planning Spotlight: Separation of Powers

Posted by Joel Beck | Aug 19, 2015 | 0 Comments

At the dawn of a new country, America's founding fathers believed that a separation of powers was a good thing. This led to the organization of government into three branches: executive, legislative and judicial. This separation of powers brought with it certain checks and balances – a way to help ensure that things were done right. We can learn lessons from this thought process that apply to situations beyond starting a new government, including estate planning basics. Did you know that when a young family prepares their basic estate planning documents, separation of powers should be considered? Here's why.

For a family with young children, a parent will need to not only designate someone to be the executor of his of her will, but also someone to be the trustee of assets left for the benefit of the child or children, as well as someone who can be a guardian when no natural parent survives. Putting all of these duties and responsibilities on one person, a trusted friend or family member, may not be the most appropriate course of action to take.

Many hands make light work, it is said. So in that regard, separating powers – or in this case separating the functions and roles – should be considered. It can certainly be a daunting task for one person to be charged with raising and supervising a child or children and at the same time being responsible for managing ad disbursing assets for the benefit of that child or children. Having one person named as guardian and another named as trustee can help spread the work and make it more manageable, perhaps.

In addition, a separation of powers can also provide for some checks and balances. When one person is given total control or close to it, there may be no one else looking after the best interests of the child or children, and making sure that the person serving as both guardian and trustee is managing both tasks properly. That's why we generally recommend that our clients consider choosing one person they know and trust to be the trustee and another person they know and trust to be the guardian. In this situation, should something tragic happen to the parents, there will be two people looking out for the child or children, and if one person is not doing the task right, the other can seek to hold them accountable. Hopefully, this arrangement would result in better protection for the child or children, while also spreading the work around.

We've had clients before who tell us that the hardest part of their estate planning is identifying whom they should appoint as guardian or trustee for their children in the event something happened to them. The decision is certainly important, but don't let the gravity of the decision prevent you from getting your planning done. Experienced planning lawyers can help you work through that process and identify whom you believe would be the right persons for the job so that you can put your plans in place and be prepared.

The Beck Law Firm, LLC helps individuals and families with their estate planning needs. We focus on practical, affordable solutions to help plan for the “what if” questions in life. If you have questions about your estate plan or need to prepare a plan, please contact us.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).

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