Appointing the Right Personal Representative, Successor Trustee or Agent-in-fact
Whenever clients consult with me to create an
estate plan, one of the issues is who will be appoint-
ed as personal representative under their will, suc-
cessor trustee under their revocable trust, or agent-
in-fact in their power of attorney. Any fiduciary’s job
is an important one, and must not be casually
assigned. The devil in the details is not the legal
issues, which are usually clear cut. It’s the familial,
personal and emotional issues that are more difficult.
For a minority of clients, the choice may be easy
and obvious. The spouse may be the first choice. If
the individual is not married, he or she may have
an understanding with a lifelong friend that the
friend will serve as fiduciary. Occasionally, there
is an adult child, an only child, who has been fi-
nancially prudent all his life and who has the de-
sire and time to do the job.
But such scenarios are the exception. Since the
top of most people’s list for fiduciary jobs is their
adult children, choices tend to be a bit more prob-
lematic. Below, a sampling of the more common
complications and considerations I’ve encountered:
If a client really wants to appoint just one of
several children as fiduciary, he may fear the oth-
er children will feel resentful. So, to keep the peace,
the client may swing the other way, thinking he has
no choice but to appoint all children as equal co-
fiduciaries. But even this seemingly ideal arrange-
ment is not without potential problems. First, it’s
based on a bold assumption:
that adult siblings—and their
respective spouses—are ma-
ture, fiscally responsible, get
along well, and that all this
will continue into the future
when they are finally called
upon to fill their parents’
shoes as trustees, personal
representatives or agents-in-
fact. Even if this is the case,
Joseph S. Karp, handling a parent’s affairs
C.E.L.A. can be a stressful and emo-
tional experience, and in my
practice I have observed the job brings out less ad-
mirable qualities in even the most well-adjusted
siblings. Accusations and recriminations fly: “You’re
not doing your fair share.” “That’s not what Dad
would have wanted.” And of course, the “What hap-
pened to the money?”
Another issue to be considered is whether the
child or children you want to appoint have the sheer
time available to effectively administer your trust,
or will, or manage your financial affairs. You may
have a high-flying financial wizard for a daughter,
a powerhouse of an attorney for a son. But if they’re
juggling their careers and families, will they have
the hours required to personally and properly man-
age your affairs?
Fortunately, your estate plan can provide your
fiduciary with the option of using outside resources
for some of the responsibility. For example, your
successor trustee under your trust will hire a CPA
to do your estate tax return; your personal repre-
sentative will hire an attorney if your estate is pro-
batable. If you are disabled and your child must sell
your home, he will rely on the expertise of a real-
tor. Another option for clients is to appoint a third
party as a fiduciary, for example, a bank trust de-
partment. Another possibility is appointing a trust-
ed attorney or accountant. If you do decide to go
this route, you should make sure the third party is
certified as an Accredited Investment Fiduciary®,
a designation I hold. Certification ensures that your
fiduciary is knowledgeable about prudent invest-
ment practices and has agreed to uphold the high
standards required in a position of this magnitude
of responsibility.
Joseph S. Karp is a nationally certified and Florida Bar-
certified elder law attorney (C.E.L.A.) specializing in the prac-
tice of Trusts, Estates and Elder Law. His offices are located
at 2500 Quantum Lakes Drive, Boynton Beach; 2875 PGA
Blvd., Palm Beach Gardens; and 1100 SW St. Lucie W. Blvd.,
Port St. Lucie. Call him at 561-752-4550 (Boynton); 561-625-
1100 (Palm Beach Gardens); or 772-343-8411 (Port St. Lu-
cie). Toll-free from anywhere: 800-893-9911. E-mail: KLF@
Karplaw.com. or website www.karplaw.com