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Choosing the Right Fiduciary

Quite apart from working with financial advisors or brokers who may or may not be fiduciaries, the choice of those persons who are to carry out your wishes and instructions is critical to the success of your plans. Whether it is a will naming someone as your personal representative or executor or a trust effectuated by a trustee who is to provide for a spouse, future generations, or even a charity, the naming of the fiduciary may be determinative of the success of your planning.
Often the best choice is a competent and trusted family member with whom you can discuss your intentions and wishes and address potential conflicts among beneficiaries and other family members. If you are fortunate, there will be such a person to name as your executor or trustee and they will be available, willing and able to serve when the time comes. Of course, things change over time and people may die, move away or otherwise be less desirable in the fiduciary role. Here is where the ability to write a new will – with a new executor – or to amend a revocable trust with a new successor trustee can make things work.
On the flip side, the attorney drafting your will or trust may choose to name a firm or person you do not know to act as the successor executor or trustee when you die or are no longer able to handle your affairs. Be very careful here, because this unknown professional may or may not be competent and will almost certainly not know (or probably even care) about your intentions and wishes nor have any understanding of your reasons for the plan you are attempting to implement. Like many trust companies, these fiduciaries are in business to make money but not necessarily to make an effort to carry out your wishes. All too often these fiduciaries are reluctant to surrender control or be responsive to the beneficiaries and will charge top dollar for their services any way.
This is not to say that a corporate trustee that YOU select will necessarily be the wrong choice. Such a fiduciary could be the best choice depending on your situation but only where you have the opportunity to understand what to expect and why. The existence of a relationship with the proposed fiduciary can be much more important and a stronger reason for a selection than simply being available to offer a service. Make sure you understand who will be responsible for handling that will or trust when you cannot and that you are comfortable with the choice.


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