When we work with clients to make sure that their family is protected if something happens to them, one of the issues that some clients struggle with is who to name in their will as the executor, who to list as guardian for their minor children, and who to select as trustee for manage assets for those children. Today, I'll share some thoughts on this important subject.
Before naming someone to be executor of a will, you need to understand the role. The executor is the person who is going to be responsible for gathering your assets, paying your bills and expenses, and then distributing those assets in accordance with your Will, all while subject to oversight of the probate court.
Some people believe that this role should fall to the oldest child, if he or she is an adult. That person might be a good choice to be executor, but he or she might also be a bad choice, and in some situations it could be a very bad choice. For this role and others, understand that as individual people, we all have certain skills and abilities, and strengths and weaknesses. What I might be able to do well, you might not can do well. And vice-versa- some things you'll do much better than me. As such, it is a good idea to keep that in mind as you identify these important players in your estate plan.
A key point in choosing an executor is finding someone that is organized, capable of fulfilling the role, and someone you trust to do a good job and follow your wishes. That person might be a relative, or it might be a friend. Or, it might even be an impartial third party, such as a bank's trust department or your CPA. You may think that the executor needs to be local- living in the nearby community – but that's not a requirement. It falls down to who can you trust to do the job, who has the ability and capacity to do it.
Let's address guardians for minor-aged children: The guardian is someone who would be responsible for raising your minor-aged children if neither parent survives. Obviously, this is a very important role. To choose a guardian, think about people who have a relationship now with your children, and consider their parenting style, discipline style, personal values, religious faith, and other personal qualities, to identify who would make for a good fit with your children. Don't focus on their financial situation – hopefully you have planned and have life insurance and other assets that will meet the children's needs as they grow up.
If you believe that a couple would be a good choice to be guardian, think about the possibility that the couple might not stay together and be able to jointly raise your children. It is possible that due to disability, divorce, or death, a couple may not be able to jointly serve. So that begs the question of what happens then? Can one of them serve without the other? Choosing guardians correctly really requires an analysis of that question, and your will needs to address that to make sure your wishes are well documented so that they can followed.
Finally, let's look at choosing a trustee for your will. Generally, the trustee is a person who will manage assets left behind for your children, until the children become adults and those assets are then distributed based on your distribution schedule in your will (hint: it may be a very wise idea NOT to distribute assets to children when they turn 18 or 21).
Certainly, not everyone is cut out to serve as a trustee. If someone can't manage their own money, they might not be the best choice to serve as your trustee. Also, I generally recommend that you appoint a trustee who is not serving as the guardian. This helps spread the work around, and it provides some checks and balances through greater accountability. This means that you would have two or more people looking out for your children – and that's a good thing.
Choosing executors, guardians and trustees is a very important step in getting your estate plan together to make sure that you and your loved ones are protected and your wishes are followed. But be sure that you don't get so bogged down in this decision that it keeps you from getting your planning done, because not getting your planning done leaves your family at risk. Working with an experienced attorney can make this process easier and help you identify how best to make these decisions and get your planning done.
If you'd like to receive some free information on estate planning, we're happy to send that to you. Call our office or email us through our website and ask for your free guide to estate planning in Georgia. We'll send that to you (if you are a Georgia resident) for free, no strings attached. Or, if you are ready to work with someone now to make sure that you and your family are protected and your wishes are documented, give us a call.