Fiduciaries are those individuals who run the show if you are incapacitated or deceased (agents, personal representatives, trustees). Choosing wrong fiduciaries is an extraordinarily serious mistake with devastating consequences. This mistake is based on two deep misunderstandings: (1) underestimating how complicated and time-consuming a fiduciary’s work is and (2) underestimating the emotional tension between a fiduciary and beneficiaries.
With these common misunderstandings, people often give little thought to the choice of fiduciaries, usually picking an oldest child, with another child as a backup.
In so many probate cases we have litigated, the fiduciary has been an intelligent, accomplished adult child who was not prepared for the emotional and physical work of managing his or her deceased parent’s estate and dealing with his or her siblings. These intelligent adult children often had no respect for written estate documents, ignoring them until forced to consider them. In other situations, the adult child was a good person who simply went his own way, again ignoring documents or misunderstanding the documents, until they had managed to alienate beneficiaries and make serious financial and tax mistakes.
As noted in the first mistake, the AARP conducted a survey of attorneys in two states (California and Idaho) and found that one percent (1%) had a competent working knowledge of estate planning. That means that even attorneys–99% of them–do not understand estate planning law. Even if your son or daughter is an attorney, that does not qualify them to act as your fiduciary.
Choosing correct fiduciaries is perhaps the most critical decision a person makes in doing estate planning. Even with the best documents, the wrong fiduciaries can destroy your planning. With cheap internet/software documents, the wrong fiduciaries can destroy your planning and family relationships and jeopardize your assets. Knowing all that fiduciaries must do (we administer numerous trusts as trustees), we are able to educate you in choosing the best fiduciaries to ensure the success of your planning.
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