Monday, May 26, 2014

The Perils and Frustrations of Making a Child a Successor Trustee of Your Trust

Often our clients in the process of preparing their estate plan determine that the best person to carry out their wishes as Trustee of their Trust and Executor of their Will is an adult child of theirs.  It seems like a reasonable determination, but often leads to problems once the Testator is deceased.  Very often it is much more difficult for the Successor Trustee to handle the tasks, understand the rules and follow through with the fiduciary obligations of a Trustee, than it was for the original Trustee, who only had to continue with his or her life as they had before without accounting to anyone for their actions or failure to act.  Thus, when it comes time to being a fiduciary for all of the beneficiaries of the Trust, once the Settlor has passed, the situation can become grim and overwhelming.

Even in a relatively small estate, certain actions are required of a Successor Trustee, such as providing Notice to all the heirs and beneficiaries of the Trust, giving Notice of death of the original Trustee, or a joint tenant and providing the Government with the required statutory notices, as well as and providing the proper bookkeeping and Accountings required of a Successor Trustee.  Often, it is unclear as to what needs to be done if certain assets have not actually been transferred to the Trust and if certain Beneficiary Designations have not been changed to accommodate the wishes of the decedent upon completion of the estate plan.
Managing brokerage accounts and understanding how to distribute funds to beneficiaries whether human or otherwise can also be difficult and confusing.  Selling real property and making sure the property is properly in the Trust and the proper notices have been recorded can also be complicated and extremely time consuming.  Therefore, often times, professional help is necessary, if not preferred.  Very commonly, this new Successor  Trustee thinks that he or she can handle the affairs of their mother or father’s Trust without the need to involve an attorney, which they perceive as being an unnecessary expense.  However, rather than it being an unnecessary expense, doing the right thing in the first place will most often save the Trust money and save the relatives and other beneficiaries the aggravation and anxiety of wondering whether their beneficial interests in the Trust assets are being properly looked after.
Having spent many years advocating for the rights of such beneficiaries, it seems clear to me that it is only a foolish Trustee who does not look for an advice of a probate attorney and a financial advisor and/or accountant, who are equally versed in the tax laws pertinent to probate and estate matters.  Certainly, when presented with your new role as Successor Trustee, it would be prudent and most beneficial to, at the very least, make an appointment with a probate specialist, whether an attorney, accountant and/or financial advisor, to go over what needs to be done for that particular estate and what the potential cost would be to the Trust estate. 
Should you be interested in discussing such issues with one of the member of Cooper-Gordon, please contact us for an initial consultation.
By: Frieda Gordon, Esq.


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