Choose Wisely When You Consider Your Fiduciary and Your Estate Plan
Alexander S. Douglas, II Dec. 23, 2013
One of the most common errors parents can make when doing their estate planning is not making the hard choice as to who they want to serve as their fiduciary. Specifically, parents make the mistake of choosing among their children to serve as their fiduciary instead of choosing a bank or brokerage company with trust powers, or other non-family member. Parents naturally do not want to show favoritism with regard to their children or indicate they lack any confidence in any particular child. Often, the parent kicks the can down the road by simply choosing both of their kids, or even multiple siblings as co-fiduciaries, even knowing that they may have great difficulty working together. This is a disastrous road to take.
Parents should not set their children up for failure if they know their children are not likely to be able to work together. The following is the most common scenario. Mother, being the last to die, changes her will to make her two daughters co-personal representatives of her estate and co-trustees (replacing her deceased husband who she had named in her prior will). One daughter is strong-willed, the other is mild mannered. The daughters often had problems working together and even routinely fought as youngsters. The mother, however, simply cannot bring herself to choose between her daughters. As such, she wants to “recognize” both by making both daughters co-fiduciaries of her estate or trust. The result? The daughters, predictably, cannot work together and worse, actively take action to hamper and frustrate the other when they need to work together the most.
After the mother dies, all gloves are off and the daughters start litigating. The result? Tens of thousands of dollars of the mother’s estate intended to go to the benefit of her daughters is squandered in legal fees—all because the daughters were set up for failure by the mother in her estate plan. What is the solution? If your estate exceeds $1,000,000, a bank or brokerage company with trust powers is a good solution. A professional fiduciary such as a bank or brokerage company can offer professional fiduciaries familiar with Florida law and who know how to navigate an estate administration and/or trust administration.
Having lost a parent is difficult enough, but having to administer an estate or a trust by a person unfamiliar with fiduciary responsibilities can be a burden that may not be appropriate for your children. Moreover, by picking a bank or brokerage company, the parent avoids having to choose between their children so that no one is upset. In essence, you will have given your kids a final gift of having a professional navigate the administration of your estate plan. If your estate is less than $1,000,000, there are many smaller trust companies and/or certified public accountants that are willing to act as your trustee and/or personal representative. Family harmony can be an important legacy that you leave by considering the simple realities of your family dynamics. If in doubt, choose a third party fiduciary, not your family.