For most people, a Last Will and Testament is the first estate planning document they create. That Will may remain as the cornerstone of their plan moving forward; however, at least trust agreement may be added to the plan as well. When you created your Will, you named someone to be the Executor of your estate. If you are now creating a trust, can the same person be the Trustee of your trust? Should the same person be your Trustee? To shed some light on the issue, the Los Angeles attorneys at Schomer Estate & Wealth Advisors discuss whether the Executor of your estate can also be the Trustee of a trust you create.
Understanding the Role of Executor
The person you appoint to be the Executor of your estate will be responsible for overseeing the administration of your estate during the legal process known as “probate.” As the Executor, the individual you appoint will have various duties and responsibilities, including:
- Securing and inventorying estate assets
- Categorizing assets to determine if they are part of the probate process.
- Filing the required paperwork to initiate the probate process.
- Notifying beneficiaries, heirs, and creditors that probate is underway.
- Reviewing creditor claims.
- Defending the estate if the estate becomes involved in litigation.
- Paying debts of the estate, including federal and/or state estate taxes.
- Transferring assets to beneficiaries and/or heirs of the estate.
Understanding the Role of Trustee
All trusts fall into one of two broad categories: testamentary or living. A living trust is established and administered while the Settlor (creator) is alive but can continue past the death of the Settlor. A Testamentary trust is created through a provision in the Settlor’s Will and only activates upon the death of the Settlor. The Trustee of a trust also has a variety of duties and responsibilities, including:
- Administering the trust using the terms of the trust agreement.
- Managing trust assets.
- Investing trust assets.
- Communicating with beneficiaries.
- Paying trust taxes.
- Making distributions to the trust beneficiaries.
Executor and Trustee: Can and Should They Be the Same Person?
As the creator of both your Will and trust, you can appoint anyone you wish as your Executor and Trustee. Legally speaking, nothing prevents you from naming the Executor of your Will to be the Trustee of a trust you create. In practice, however, there may be reasons why doing so doesn’t make sense.
When deciding if your Executor and Trustee should be the same person, consider the purpose of the trust. If, for example, you create a revocable living trust as part of your incapacity plan, you will appoint yourself to be the Trustee – and obviously, you cannot also be your own Executor.
You may also create a specialized trust, such as a special needs trust or a pet trust, that would dictate appointing someone with specialized knowledge or a specific interest as the Trustee. In that case, you may prefer to name someone other than your Executor as your Trustee.
Finally, consider whether you want to keep the administration of your estate and the administration of the trust separate as a precautionary measure. Naming the same person to be both your Executor and your Trustee could result in giving that person a tremendous amount of power over your assets. Sometimes, including a built-in system of checks and balances by appointing different people to the positions is a better choice.
Do You Need Help Deciding Who to Appoint as Your Executor or Trustee?
For more information, please join us for an upcoming FREE seminar. If you need help deciding who to appoint as your Executor or Trustee, contact the experienced Los Angeles trust attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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