Issue 35.11
Upon your death someone has to be responsible to collect and safeguard your assets, prepare an inventory, pay bills and final taxes, represent the estate against claims, and distribute your estate to your heirs. It is a lot of work, and sometimes very complicated. Handling an estate is a balance of expertise, convenience, costs, and judgment. There is no “right” answer to the question of who should be your executor or trustee. But there are several considerations.
One option is to appoint a professional paid executor or trustee. The main benefit is that they have nothing to gain from the will, so there is no potential for a conflict of interest when they make decisions. This helps avoid family members accusing another family member trustee of cheating or taking advantage of their position to get special treatment. If you have tension between your children or other heirs, you may want a third party executor or trustee to help reduce the likelihood of continued or an escalation of fighting after your death. The larger your estate the more potential there is for conflicts, so a professional executor or trustee might be the choice for you.
Another option is to appoint an unprofessional executor or trustee, such as a trusted child or friend. Most people choose this option because they trust the child or friend to know their wishes if a tough decision arises as to whom should get what property. The other benefit is the person might waive their right to be compensated for their services as the executor or trustee. They also often have a vested interest in making sure the probate process or the trust administration goes as quickly and smoothly as possible.
Sometimes co-executors or co-trustees make sense. You might combine the personal touch of a family member or friend with the expertise and objective judgment of a professional executor or trustee. Or you might appoint all or a couple of your children as co-executors or co-trustees to force them to work together and resolve differences as choices need to be made.
The best quality in an executor or trustee is perseverance. He or she will spend most of their time dealing with billing records, making payments, and filling out forms. They will be immersed in red tape and bureaucracy. They also have to manage the expectation of heirs who might question why things are taking so long or why there share is smaller than they expected. A thick skin and patience are invaluable in your executor or trustee.
Sean Sullivan is an attorney and member in the firm of Brindley Sullivan, PLLC, in St. George, Utah, and may be reached at (435) 673-9220.