FIDUCIARIES AND THEIR RESPONSIBILITIES

Executor The Executor is appointed under your Last Will and Testament. The court accepts his appointment when the will is admitted to probate.

His duties include collecting all of the assets, paying all of the debts, paying specific bequests, preparing and filing the estate tax return(s) if any, and making final distributions to the residuary beneficiaries.

This person many times is your spouse or your significant other, however that is not mandatory. It can be any person or entity (banks are sometimes named as the executor of an estate). In general, we recommend this individual be an organized person since in a relatively short period of time, he or she must transfer assets, pay bills, collect information and provide it to whomever is preparing the estate tax return(s) and income tax returns, pay out bequests, etc. The term is shorter than that of a trustee – the executor’s term ends when the estate is completely distributed and the estate tax returns have been filed and accepted as filed.

Trustee Your trustee is appointed by you either in a trust agreement or under your will. For a lifetime or inter vivos trust, there is no “court appointment”. You will name your trustee and he will become same upon acceptance by him of the position. For a testamentary trust, namely one which is created under your will, the court will appoint him or her as trustee when the will is accepted for probate.

The trustees term will last an extended period of time. During this time, his job is to invest the assets of the trust, collect the income, pay the income and perhaps the principal out in accordance with the terms of the trust, file annual income tax returns, etc.

In addition, many times the trustee is called on to make a personal decision. In many trusts, the trustee is given the power to invade principal. This could be for specific reasons in the trust - for instance, the principal can only be invaded for the beneficiary to buy a home - or it could be discretionary - for instance, the trustee can invade the principal in his discretion for the health, education, maintenance and support. This is relatively vague and it allows the trustee to deal with situations as they arise. None of us have a crystal ball and we cannot foresee what the future will bring which is why such broad discretion is given. However the flip side is that the trustee must make the decision whether to invade and you must choose your trustee with this in mind.

Guardian The Guardian of the person is the individual appointed by the court to step into your shoes as the guardian of your child. They will oversee the day to day personal matters of the child. They do not have authority over the money of your child which is handled by the Guardian of the property. In almost all cases these two positions are held by the same person, but they do not have to be.

The guardian’s term ends when the child attains the age of eighteen at which point he no longer is considered a minor.