Children as Executors/Trustees

While it is quite natural for parents to name their children as executors and trustees, they need to consider whether this is the best choice for everyone involved. Being an executor or trustee is a responsibile position which includes responsibilities, expectations, and liabilities. Parents need to consider whether a child or any of their children are really the best people for the task. Many parents feel that to name someone else beside one or more of their children would be an insult to the child, something they certainly don't intend. It really isn't.
For many people, the difference between an executor or trustee and a beneficiary is not really understood. To be a beneficiary means that you are someone who will benefit from the estate. You are to receive assets of some kind. You don't have to do anything to receive them. There are no responsibilities to fulfill. You just have to tell the executor or trustee where to send the money or property, and then you can relax.
On the other hand, if you take the job of executor or trustee, you have many responsibilities. You have to locate, authenticate, and properly deposit the appropriate documents, be they a will, a codicil, or a trust. You then have to locate and secure the property of the estate. This alone can take much time and effort. Next you have to see that the legal requiremments of your position are fulfilled, be they in court or not. Next you need to determine the identity of creditors of the decedent or trustor, and then you need to settle any claims they may have. This may be simple, or it may involve hiring an attorney to settle a lawsuit. Of course, you also need to deal with the tax laws that affect your estate, in the knowledge that you may be personally liable for a tax if you don't do this part of your job correctly. Next you need to identify and locate the beneficiaries. Again, this may be simple, or it may involve a long search for long-lost or even never-known relatives or others. Last, but not least, you need to make the distributions of the estate to the beneficiaries, who may be upset at you for not doing it sooner.
While children may be quite competent to complete these tasks, it is my experience that children almost always take longer to complete them than do others. Children are not just involved in the estate, they are emotionally involved in the lives of the dearly departed. Many children need to get their emotional lives in order before they can get on with the job of being an executor or trustee.
If more than one child is designated to serve as an executor or trustee, both emotions and psychology come into play. In most States of the United States, the default rule is that cofiduciaries have to act unanimously. That means that siblings have to agree on everything they do. One child cannot delegate to the other child without responsibility for what their brother or sister does. While this may force additional communication and agreement, it also may set up a situation for stagnation in administration. The children may just decide not to decide, while something doesn't get done.
Some documents provide for action by a majority of the fiduciaries. This is intended to allow administration to proceed, even when a minority of the children don't agree. While this may seem to express the good intentions of the parents, in my experience it just means that two groups form, the majority and the minority. This does not lead to warm feelings.
I suggest to parents that unless they have one child who they believe is not only responsible, but who will communicate with his or her siblings as to what is going on, and take their thoughts and feelings into consideration, that an executor or trustee from outside the family be chosen to see that administration is completed in a fair and rational manner. While such a fiduciary may "cost more" in that such a person or institution almost always will ask for a fee, such an additional cost may be more than worth the expense in that the estate will be reliably administered and the children will not have to deal with additional responsibilities at a time when their emotions may remain rather raw for a long time.

Who and I and Why Am I Doing This?

I've now been practicing estate and trust law for over three decades. During this time I have experienced estate plans that work perfectly and those that only cause emotional and financial problems for all involved. In this blog I intend to post thoughts and experiences that may stimulate the readers to avoid or solve problems. While every individual and family is unique, situations in estates have been recurring for decades, nee centuries. Parents and children see the world through very different eyes. Couples may intend the best for each other, or they may not. Special situations arise which make all previous plans obsolute. I will set out my thoughts and opinions. You may take them for what you think they are worth. I do not intend to give specific legal advice for a specific situation. For that, the reader should seek competent counsel. I would hope that these notes may make such discussions a little bit more productive and valuable for both the layman and the professional.