Many people ask us on a regular basis ‘who’ is going to carry out their wishes when they’re gone. All of us should have a Will or Trust, but the ‘people’ that are going to implement it can be a big question mark sometimes. It’s common to be concerned about who will pick it up and ‘run with it’ making sure all of your wishes are carried out.
In fact, when setting up your Will and Trust, it’s vital to understand the roles and differences between the Trustee, Executor, and Guardian. In fact, these three parties are the foundation, or ‘trifecta’ of the persons that will be implementing your Estate Plan.
First, and most importantly for those with children, is appointing the proper guardian for your minor children. This is the individual or individuals who will raise your children if you were to pass away before they reach the age of 18. Of course, choosing a Guardian is a very heartfelt and difficult decision to make. Realize that the Guardian does not need to have access to, or control, the financial aspects of your estate; that is the Trustee’s role. It’s ok to choose someone ‘good’ at raising children, but maybe ‘not the best’ at handling the financial decisions for your assets. Now of course in some instances, you may prefer to have the same person raising your children to have control over the finances, and that’s certainly acceptable and common as well.
Ultimately, the Guardian should be the person or persons that would raise your children in a physical and emotional sense in the same way you would. In your estate plan, you will have the option to provide for your children and/or compensate the Guardian for their services, so they are not left with the financial burden of raising your kids. This opens up your choices to more than just those who can afford to take on more children in their home.
The Trustee is the individual that makes all of the financial decisions regarding your assets AND carries out of your wishes within the provisions of your Trust. IF your trust is the Bible setting forth your wishes and guidelines, then the Trustee is the Prophet to make it happen. The Trustee will generally serve in their position longer than the Executor, and depending on the provisions of your Trust, could serve for many years managing the Trust for Beneficiaries. This individual, if older in age, should have a younger “back up” to serve if and when necessary. If applicable, the Surviving Spouse is generally the 1st Trustee.
This person is ALSO responsible for the financial well-being of the Trust assets and owes a duty to the Trust Beneficiaries to faithfully carry out the provisions of the Trust. You should choose someone who is financially responsible and capable of responsibly handling disputes should they arise among the beneficiaries. While these are similar traits to those you may look for in a Guardian, the Trustee doesn’t necessarily have to have the parental tenderness you may desire in a Guardian.
The Executor or Personal Representative
Finally, this is the individual who essentially handles your estate’s immediate needs upon your passing; such as implementing funeral and burial instructions, collecting personal property, and assisting the Trustee in distributing personal items to the Beneficiaries. It is important to note that the Trustee is the ultimate decision maker and the Personal Representative/Executor is more of a support, if anything, to the Trustee. We generally like to see clients appoint an Executor that is ‘local’ to you. Thus, someone that can rush over to your house, the local funeral home, organize family events, etc…
This person carries many of the same responsibilities as the Trustee, just in a different capacity. However, this person also has the responsibilities to oversee your funeral and burial, distribute any assets that fall outside the Trust, and to rummage through your personal belongings after you have passed and make sure they are distributed or disposed of properly.
What does my Spouse do?
If you are married, it’s important to note that we typically appoint your surviving spouse as the 1st Trustee, Executor and of course guardian of the children. In a properly designed Will and Trust (Estate Plan), we appoint at least 2 ‘backups’ for these positions above. For example, your spouse is appointed as the first Guardian, then your Grandma, and then maybe your Sister. I want to make sure we are ‘three’ deep in options for the position to make sure it is filled. The last thing we want is to have a vacancy and leave it up to a judge or court battle to settle who gets the role.
While these three positions have been referred to as three distinct people, many people appoint one person to perform all three roles. Not something we recommend, but regrettably for some reason clients just don’t have confidence in multiple family members or friends to carry out these roles. But again, there is no rule that requires three separate people serve in these three roles, just as there is no rule that only one person serves in each position. You can ALSO have Guardians, Trustees, and Executors work by committee. For example, it’s also common to have a ‘team of 3’ serve as your Trustee and majority rules in all of the decisions.
Finally, keep in mind that you can always change these folks and appoint different ones (very common after a bad family reunion). Remember, with a Revocable Living Trust, as long as you are of sound mind you can always appoint a new person in any of these roles – it’s your right under the trust. Bottom line, your estate planning professional will guide you to the best strategy for your situation so you can rest easy knowing your loved ones and assets will be taken care of when you pass. If you haven’t set up your Will, Trust or what we like to call your Estate Plan yet, please go here for more information: Learn more about a Will or Trust and get started.