Using a Professional Trustee to Settle the Estate

Most people who set up living trusts today choose themselves as trustee. However, since trusts continue after the death or disability of the original trustee, a successor trustee must be named. Should you choose an individual trustee, a professional trustee (such as a bank, lawyer or trust company) or a combination of the two?

The advantages of naming an individual are that you know the person and they know you. Presumably, they would act in your best interests knowing how you would wish diverse matters to be handled, including the investment and distribution of your trust assets.

On the other hand, managing a trust may be a complex task. Balancing the income needs of a current beneficiary with the requirement to preserve the capital for future, or contingent, beneficiaries requires knowledge of sound, conservative investment practices. In addition, annual fiduciary returns must be filed for the trust. Individuals often face other commitments or may become disabled or die, leaving the management of the trust in limbo for an extended period of time. Individual trustees may have or develop personality conflicts with siblings. We have seen unresolved childhood conflicts that have lain dormant for years suddenly reappear with great force in the emotional period following the death of a parent. The issues of money and control often add to these hidden problems. In a similar vein, individual trustees are subject to the influences of their spouses who may be pursuing their own agenda and who are not bound by the “family glue”.

Despite parents' best intentions, the chosen trustee may act dishonestly or to their own benefit (self-dealing) and to the detriment of the other trust beneficiaries. Unlike professional trustees, they are not subject to professional or governmental oversight of their actions and they may not have the resources to right a wrong even if they are successfully sued for any wrongful acts.

For continuity, and out of respect for the grantor's choice, the professional trustee will usually retain the attorney or law firm that prepared the trust to settle the estate. The parent's law firm, as opposed to the personal lawyer of one of the children, is more likely to look after the interests of all the beneficiaries in an even-handed manner.

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