Being “Fair” By Naming All Children as Fiduciaries
Many parents prefer to name all of their children as Co-Executors, Co-Trustees or co-guardians in their Last Wills. They “just want to be fair” and not have to choose between them. Making this, and other types of fiduciary designations in your Last Will, is a ticket to a courtroom, and the end of any family harmony.
Rule By Committee
During an estate planning interview, clients often tell me not to be concerned. Their children are all nice to each other and get along very well. But, even assuming that you are correct, naming them all as co-anything creates “rule by committee”. Each as an equal say in deciding any issue, and this is where personality traits come into play. Those irritating traits that could be overlooked in the past, now become heightened in the stress and turmoil of living through difficult times. Your children did not agree upon everything in the past; it is unlikely they will agree when your estate is being administered.
Families Should Stick Together, But…
Nearly all of my clients tell me that their children are wonderful and always get along. After all, they grew up in bucolic Hunterdon County, New Jersey, where they received the best of everything. I am sure that they are wonderful. But, what many parents do not understand is that they, the parents, are the “glue” that keeps the family together. When the parents are gone, so is the glue. Things change. A week does not go by in my office when a probate matter, or elder matter, comes in because there is a disagreement among siblings. Forgive me, but your position on your kids does not square with my weekly experience.
Spousal Influence
Well, maybe you are lucky, and you are right. Your children all get along. But what about their spouses? Is your son-in-law or daughter-in- law agreeable to your estate plan? Will they have some influence over your child? Many times, yes. I see it. Sometimes I can get the kids to reconcile and work out their differences, but then a spouse enters the fray and everything is undone.
Our Society has Changed
The fact is that these types of disagreements and court filings were once rare. Not so much anymore. I have noticed, my colleagues have noticed, public officials have noticed, and judges have noticed, that the number of these disputes have skyrocketed over the past decade with no end in sight. This is the entitlement generation. I want you to pause and carefully consider your choice of Executor and Trustee.
Attorneys Are No Longer Recommending Family Fiduciaries
Some of my colleagues have begun advising their clients never to choose their children as Executor, Trustee or for any other fiduciary function. Some have created family harmony programs where the children agree in writing not to fight, and have a “Clear the Air” session in their office. Sound a little over the top? Maybe, but it is protecting estate plans from attack and thereby preserving happy family ties.
Consider Choosing Someone Outside of the Family, or an Institutional Fiduciary
I ask that you spend some time thinking about these issues. Just don’t pick one or more of your children without any thought. Perhaps there is someone outside of the family? A trusted friend, professional or other person can be considered. Perhaps your local bank will fill the role. Certainly, there are trust companies, such as Garden State Trust Company, in Lebanon, Hunterdon County, which will serve as Executor or Trustee. Yes, they charge a fee, but your child fiduciary is entitled to a commission as well, and, isn’t this fee worth preserving your family’s harmony?
Choosing a fiduciary to handle the various aspects of your estate should not be a quick, automatic solution. There are many issues to consider. The future of your family may depend on it.
Robert J. Shanahan, Jr. Esq focuses his practice in estate planning, elder law and probate matters. Mr. Shanahan additionally practices in business law and non-profit matters. He is a trained, experienced mediator and offers dispute resolution services, particularly for those arising from probate and elder law matters. Additionally, Mr. Shanahan’s firm, Law Offices of Robert J. Shanahan, Jr., LLC, offers a breadth of additional services to families and businesses throughout central New Jersey.
Mr. Shanahan received his Juris Doctor from the Temple University School of Law in 1985, and obtained licensure in New Jersey in the same year. He received a Bachelor of Arts degree in History in 1981 from William Paterson University, with honors. Robert is a member and Past President of the Hunterdon County Bar Association, and is a member of the New Jersey State Bar Association, and its Elder Law and Disability Section. He is also active in the National Academy of Elder Law Attorneys. Robert is a member of the Hunterdon Medical Center’s Bio Ethics Committee, and he was awarded a Five Star Financial Services Professional Award for 2016.
You may contact Robert at (908) 751-1551, or [email protected].