Founder
Whether a client is preparing a will or a trust, or simply naming beneficiaries on investment and savings accounts, it is important to take into account family dynamics. While there is nothing in the law which requires this, it is certainly a consideration, in order to avoid family feuds.
Probably the most important decision in making a will or a trust is who to name as the person in charge of your affairs when you become disabled or pass away. Of course, the primary person is usually the spouse, while the back-up is usually a family member. Most times, it involves children. With a revocable trust, one names a person or persons who take over if the grantor (the person creating the trust) becomes disabled or dies. With a will, the Executor steps in only when you pass away. If a client has multiple children, it is usually difficult to choose who has this role. Generally speaking if someone has just two children and they are both capable, and they get along, it is a good idea to name them as co-Executors and/or co-Trustees. If there are more than two children, it creates a problem because having more than two people having to act together becomes difficult and inefficient. In that instance, one may want to choose the oldest child first, and then the successive Executors and/or Trustees are ranked by age order. If one of the children has issues, that may not be feasible. In the end, you really do want the child who is most capable and responsible to take on those roles.
If you need to choose one child to be your Executor and/or Trustee, it is important to name the others as back-up, unless there are extraordinary circumstances. Why? Leaving one or more children unnamed can cause a great deal of hurt and may lead to children resenting their sibling(s). One other option is to give each child different responsibilities. For example, one child can be the health care agent, one the Executor/Trustee and one the power of attorney. In this way, no one feels left out. Of course, if one has a child who is in the medical profession, it would be insulting not to name that child. If one has a child in the financial industry, it would be insulting not to name that child as power of attorney.
In summary, when putting together one’s estate plan it is important to take into account your children’s emotional capacity, overall capability, and that child’s relationship with his or her siblings. In the end, you do want to pick the most capable person for these roles, but it is important to think about the impact those choices will have on your children and/or other heirs.