Choosing a Successor Trustee is not something to take lightly. When an estate plan is centered around a revocable living Trust, the bulk of the assets are owned by the Trust and, therefore, under the control of the Trustee. As long as the Settlor (the person or persons who created the Trust) is capable (has legal capacity) of managing their own affairs, they are the Trustee, and continue to control their assets. If the Settlor becomes incapacitated, the Successor Trustee steps in and manages the assets in the Trust for the Settlor’s benefit. At the Settlor’s death, the Successor Trustee is charged with managing or distributing the Trust Estate in accordance to the directions provided in the Trust by the Settlor (much how a Will works).
The person you name as Successor Trustee depends greatly on your current situation and will most likely change over time. In fact, it is one of the most often-changed parts of an estate plan. For instance, if young children are involved, the Successor Trustee should someone who will manage the money for the children in the same way you would, and who will ensure it is used for the children’s best interests.
The older we become, however, the more likely it is that someone will need to step in to assist us with our own finances. While adult children may be fine paying final expenses and closing up the estate, it is not a given that they are the best choice to take care of your finances if you are unable to manage them on your own. Family dynamics should be taken into consideration when deciding if children will be named as Successor Trustees or not. If siblings do not get along, naming them as Successor Co-Trustees could be disastrous. Or, the children may be lovely and wonderful and not so good with money. In this case, placing them in charge of your finances would seem less than ideal.
When deciding on a Successor Trustee, it is important to take into account all these factors. Often, it is a family member tasked with this job; however, it does not have to be and should not be unless there is a family member truly able and willing to do the work. If there is no one appropriate within the circle of family or friends, an outside, neutral party may be the best choice. A professional fiduciary can be a perfect solution in this instance. Over my 20-year career, I have seen many times where a professional fiduciary is the better choice over a relative or friend. What’s most important is having an in-depth conversation with your estate planning attorney to ensure that all potential issues are addressed and all options investigated.
As we face coronavirus (COVID-19) together, it remains clear that we are strongest when we are in community — even from a distance. Here is a link to a site managed by the Oregon Health Authority with some Every Day Tips to keep us, and our community, safe.
For our part, we will continue to conduct all client meetings via video conference, until further notice.
With the right information and concern for each other’s well-being, we can get through this — together.
As an attorney who has practiced estate planning exclusively throughout my entire career, I feel it safe to say that no matter how many specific things listed in one’s Advance Directives, it is not possible to account for every potential end-of-life scenario that could arise. What we can do is add as much information as possible to our Advance Directives so that anyone reading it is able to gain a clear understanding of what we want or don’t want.
In order for us to provide this information to our agents, we must first be clear in our minds about our end-of-life decisions. This can be a difficult exercise, to be sure, and one that is vitally important. In his book, Being Mortal, Dr. Atul Gawande discusses what he sees as medicine’s failing by focusing on the length of life without looking at the quality of that life. He feels (and I agree) the better question to ask is what we each feel is a life worth living. It may be that a shorter life spent in comfort and with one’s family is preferable to a longer one that is ridden with pain, or in which we are sedated to the point we are unable to be with our loved ones. Each of us will have a different answer to the question and it is important for each of us to explore that answer for ourselves.
There are several resources to help us with Dr. Gawande’s question, both locally and on the internet. www.GoWish.org is a great place to start. Play their “game” online and then take a screen shot of the cards laid out and include them as an attachment to your Advance Directive. Oregon’s Advance Directive for Health Care now allows us to easily add additional instructions to its basic form, to address such issues as dementia, COVID-19, and many other end-of-life issues. For those interested, there are highly qualified people right here in the Rogue Valley who will work with individuals in an even deeper exploration into these questions.
If you are a care-giver for someone (paid or not), if you work in a facility where people needing care depend on others to speak for them, learn about those you are charged with protecting and truly advocate for them. Look at their Advance Directives; speak with their family; speak with them if possible, learn everything you can about their wants, needs, and desires so that when called upon, you can be certain that choices you make reflect their true desires. As caregivers, it is our job to be the voice of those for whom we are providing care. While we aren’t going to be able to identify every possible variable that may affect end-of-life decisions, we can thoughtfully consider and discuss what factors and situations would merit being covered in our Advanced Health Care Directives.