Sunday, June 19, 2011

Trust Me - Who Should Be My Trustee?

Once I convinced my client, Mary, that a trust is a safe, and not so scary, way to protect herself and her stuff during any incapacity, she wanted to know who could possibly serve as a backup trustee?   According to Mary, her daughter was a kind and loving person who would do everything she could to support her mother, but her daughter’s financial skills were somewhat suspect.  Mary’s son is a busy family man with a great job, but he seems too busy to help Mary now.

Who could she choose? 

First, what does a trustee do exactly?  A trustee is a fiduciary, which means that he or she has a legal or ethical duty regarding the management of property for another.  Although a trustee may have either the duty to manage the trust assets or the duty to distribute those assets, many trustees both manage and distribute.  A trustee is usually responsible for investing the assets in the trust, distributing those assets to the beneficiaries according to the trust terms, and making sure any required accountings are prepared and that taxes are paid when necessary.

A trustee can be an individual who is a family member or friend.  Parents often want their children to succeed them as trustee.  When deciding whether to have a child as a successor trustee – or when choosing which child – be sure to be realistic about your adult child’s financial abilities.  Make sure that the person you choose understands that the trust will be managed for the benefit of beneficiaries – and that the trustee might not be one of those beneficiaries.  Be aware that a trustee might have a conflict of interest if the trust assets will eventually pass in part or whole to the trustee or his or her family members.  Also, it is best not to choose someone who has financial problems such as large debts, a failing business, or a looming bankruptcy.  Someone with financial issues might be tempted to borrow or use trust assets for his or her own benefit, despite the terms of the trust.

A trustee can also be a professional individual, like a lawyer or CPA, who can be hired to serve as a trustee.  Trustees may charge a percentage of the assets in the trust, or an hourly fee for any time spent administering the trust.

Of course, a bank or trust company may also serve as a trustee.  Generally, a bank or trust company will have a trust department and will hire employees to serve as Trust Officers with primary responsibility for administering the trusts.  The bank or trust company will charge a fee – usually a percentage of trust funds – to serve in that capacity.  Many banks and trust companies will only serve as a trustee if the assets in the trust are whatever minimum amount the bank or trust company deems appropriate for their business.

You can also choose co-trustees who will work together to administer the trust.  Sometimes it makes sense to have a professional or corporate trustee along  with a family member.  In that case, the family member’s role might be to make sure the professional or corporate co-trustee is aware of the needs of the beneficiary and is making investment and distribution decisions appropriate to the circumstances.

The best way to choose a trustee is to start with a list of relatives, friends, business or professional people you know, and banks and trust companies, and think hard about their ability to manage money.  Think about their character and ethics, and choose the best from that list. 

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