Informed Consent: Choosing your will fiduciaries and guardians

by Philip Yabut

Wills and trusts have provisions that allow the testator or trust creator to choose people to act as fiduciaries for the assets that would be affected by that document. 

Fiduciaries include the executor (personal representative) for your will and trustees for a living or testamentary trust. Your executor needs to ensure that the probate process goes smoothly, that costs are paid and the court receives timely filings, and that your assets are distributed properly to your lawful heirs. Besides managing distributions from your trust, your trustee must maintain the integrity of your assets held in trust by ensuring that there is no waste or fraud. These positions require a serious commitment, so you need to be confident that they will be able to handle the responsibility of taking care of your assets. Some choose banks or other financial institutions to handle fiduciary duties rather than individuals.

One of the advantages that a will has over a trust is the ability to choose a guardian (or guardians) for your children or adult dependents. In reality, the probate judge assigned to your will actually has the final say on who becomes guardian, but deference is paid to the testator's wishes as long as it is in the best interests of the children or adult dependents. This choice may be deeply personal in nature and there is no particular formula that can or should be followed. It is important to talk to the person (or people) whom you wish to take care of your children or dependents before you execute your will. 

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

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