A trustee of the trust is given legal title to hold and to protect the trust property for the benefit of the beneficiaries. As a result, the person you choose must be someone you can trust – as the position title suggests.
Your trustee owes to the trust and to the beneficiaries the following duties:
- Duty of Loyalty;
- Duty to Avoid Conflicts of Interest;
- Duty of Impartiality;
- Duty of Disclosure;
- Duty Not to Delegate;
- Duty to Keep Trust Assets Separate; and
- Duty to Enforce or Defend Trust Claims.
Any breach of these fiduciary duties opens the successor trustee up to liability from the beneficiaries and even potential litigation which can stall the estate distribution process.
So how do you choose the right person(s) for the job of successor trustee?
You may already have someone in mind to be your successor trustee such as a child or friend or a set of persons. But having more than one person as your successor trustee can lead to disagreement and discord. It is like the saying “too many chefs in the kitchen spoil the soup” – the same applies here. Too many successor-trustees can prevent the trust from being properly administered.
Thus, it is important to consider whether your successor trustee(s) are:
- Highly Responsible
- Able and Willing to Follow the Instructions Set Out in Your Trust Without Trying to Take Any Shortcuts
- Handles High Stress Situations Well
- Avoids Conflict with Others
- Good with Money Management
- Collaborative, Communicative, and Accessible
Finally, there must be no known resentment or rivalry with any beneficiary or co-successor trustees as to avoid any disagreements between them as those issues tend to be exasperated after the loss of a loved one who once helped keep the peace.
By choosing the right successor trustee, you are ensuring that your wishes are followed and probate is avoided. This is crucial in taking care of your estate and loved ones after you are gone.
Also, a way to avoid future conflict, potential litigious situation, or disappointed expectations is by talking to your successor trustees and beneficiaries about your plans and intentions. It is important to inform them on how you intend to divided your estate and who will administer your trust. Yes, it may be uncomfortable, but it is a conversation worth having in most cases.
If you would like more information on estate planning, or any assistance making changes to your already existing estate plan, please do not hesitate to contact The Law Office of Steven F. Schroeder, PC at (714) 480-0529 for a no-charge consultation as we are here to help you every step of the way.
Written by Brianna Giliberto-Hermann at the Law Office of Steven F. Schroeder, PC