When people come to me to have their wills prepared, a lot of people want to know who they should appoint as Executor, Trustee, and Guardian. While this is a very personal question, and not a legal one, I offer you the following guidelines and question to ask yourself before making these important questions. These guidelines are based upon years of guiding people through this process and seeing how things shake out at the end.
First, an explanation of the difference. An Executor is the person who is in charge of the whole shebang. The person who will bring your will to probate court, make sure all your debts and bills are paid, and make sure your wishes are carried out. The Trustee is the person in charge of handling the money for someone who is either too young to or incapable of handling money for some reason. The Guardian is the person in charge of your children until they reach the age of majority – the stand in parent.
The Executor should be someone you feel comfortable with, someone who knows you and has a sense of your finances and belongings already so that it isn’t hard to track everything down, and who is trustworthy. That last one is tricky. Most people end up appointing their spouse as Executor, and more often than not this is a good idea, as the spouse is the main inheritor, and therefore should be in charge of what he or she gets. It is when someone is not married, or if their spouse is, for example, suffering from dementia, that the problems come.
Most people assume that one of their children should be the Executor, and sometimes have a hard time choosing between children. Some feel it should be the oldest. Some feel their children should share in the responsibility. This is tricky. There is no right or wrong answer, but it depends on a number of factors: where the children live (local is better and easier); how well they get alone; and how good they are at accounting. Sometimes appointing one child can cause strife between them: sometimes appointing them as joint Executors can make things logistically difficult. Consider appointing someone that isn’t your child. Is your best friend good with money? Is the accountant that you’ve been working with for twenty years willing to do it? Maybe you just want the County Administrator to do it. Being Executor can be difficult and annoying – sometimes farming it out to someone who is good at such things and who doesn’t have a stake in the matter can smooth things over amongst your heirs.
The Guardian of your minor children is the thing that gives people the most stress. And understandably so – worrying about your children if something were to happen to you is a major pastime for most parents. Sometimes Mom and Dad will argue about their siblings – inlaws can make for complicated relationships. Or sometimes there isn’t a suitable relative – this one is too old, this one lives too far away, that one doesn’t share our religious beliefs, that one is living with a convicted felon. Consider non-relatives. Consider this: if your children were to get a call at school saying that something had happened to both of their parents, which adults would your children want to comfort them? It might very well be a close friend or neighbor or the parents of one of their friends. What you put in a will is only a suggestion, anyway. The Court has the final say in who is the Guardian. Way more often than not they will go with your suggestion but, if in the interim time between when you wrote your will and the time that you pass things have changed, the Court can make a different appointment rather than the one you suggested in your will.
The Trustee is the person in charge of your children’s money. It is most convenient for that person to be the same person as the Guardian, since they would have easy access to the money to use for your children. If your children needed to pay for sports, or camp, or clothing, they need access to that money. However, sometimes the person who is best with children might not be the best with money. You may think that someone else would do better at managing the money. And that’s ok. It doesn’t have to be the same person. Alternatively, you could put a cap on it – any expenditure over $X has to be signed off on by a third party.
These are complicated questions with no easy answers. As always, consult with an attorney you trust so that you can understand the ramifications of the decisions you make.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes. No attorney can give you advice without hearing the details of your personal situation.