USE OF INDEPENDENT PROFESSIONAL TRUSTEES IN ESTATE PLANS

Written by J. Christopher Toews, Esq.*

I. SYNOPSIS

Estate planning attorneys spend a lot of time preparing documents—wills, trusts, powers of attorney and others—which are designed to carry out the client’s wishes when the client dies or becomes disabled. However, no matter how well a document is prepared, whether the plan works when the time comes depends as much on who is put in charge as on the technical quality of the documents.

The choice of a person or organization to execute the client’s estate plan when the time comes is critical to the success of the plan and deserves much more careful thought than it typically receives. For the reasons stated below, the best choice for many plans may be an independent professional fiduciary. A second choice which also works in many situations is to nominate a family member who then retains a professional fiduciary in an agency capacity to assist with administration of the plan. Since most plans today are based on a revocable living trust, the discussion below refers to the fiduciary generically as a "trustee." The considerations, though, apply as well to other fiduciaries, such as executors or agents under a power of attorney.