Choosing the Right Fiduciary

Choosing a fiduciaryChoosing the right person for the role of fiduciary is likely one of the most important appointments you will make during your lifetime.  Why?  Because by the time it is discovered that the choice was a bad one it is too late for you to make a change.

A fiduciary, whether serving as your successor Trustee, your executor, or an agent under a power of attorney is a person you name who is given the legal responsibility to address your financial obligations during your lifetime and after your death. A Trustee, for example, (or the executor of your will if you have a will-based estate plan) is responsible for paying debts and creditors, filing tax returns, paying taxes, and distributing the estate's assets, pursuant to the deceased person's wishes as stated in the will.

The individual named as the fiduciary can refuse to accept this major responsibility or might even resign after they have served for a period of time.  It can be a lot of work! Therefore, it’s a good idea to name alternative fiduciaries. At worst, failing to name successor fiduciaries could invalidate the entire document (as in Powers of Attorney) and at best, as in the case of a Will, a creditor with a financial interest in the estate can be appointed as a replacement executor, known as an Administrator, if all other named options have refused to serve.

It would not be unusual for a Trustee or executor to perform their duties without payment but usually, such altruism is a result of the fact that they are a named beneficiary of the trust or estate, anyone serving in a fiduciary capacity is entitled to ‘reasonable’ remuneration. In Virginia, the amount an executor or administrator is allowed to charge the estate is set by statute.

For larger estates, it may be wise to select a professional who is familiar with the duties and obligations of serving as a fiduciary. This can be extremely useful when the deceased was the owner of a business and the estate may be complicated.

Trustees and executors will frequently engage attorneys to assist them. For example, in some states, an attorney may serve and get paid as an executor and may be paid an additional fee for legal work performed by that attorney.

Reference: nj.com (April 16, 2018) “Who should be executor of your will?”


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