You’ve spent weeks working with an attorney, outlining exactly how you want your assets distributed, and finally signed your trust documents. You breathe a sigh of relief, thinking your estate planning is complete.
But here is a hard truth: a signed trust is just paperwork. Without the right trustee to execute it, you could inadvertently hand control of your legacy right back to the court.
Choosing the right trustee for your trust is a crucial decision, yet it is one that people frequently overlook or overthink. Often, the go-to choice is simply the oldest child, a close sibling, or anyone in the family tree with a pulse. Unfortunately, picking someone based solely on DNA can lead your estate plan down a disastrous path.
If you are inclined to choose a family member out of loyalty, love, and trust, you must look past emotion and evaluate them on two critical factors: competency and capacity.
Competency doesn’t just mean your loved one is a good person; it means they actually understand what they are getting themselves into. A trustee has a legal, fiduciary duty to manage investments, pay taxes, settle debts, and distribute assets according to your exact wishes. Your chosen trustee needs to be financially savvy and organized enough to handle complex paperwork without becoming overwhelmed.
Capacity comes down to availability. When the day comes for your trustee to step up, will they have the bandwidth to perform the role well? If your brilliant, financially sound sibling is currently raising three toddlers, traveling overseas for business every month, or managing a high-stress career, they simply may not be available. A trustee needs time and focus to implement your wishes properly.
If you select someone who isn’t interested or lacks the ability to do the job, they will often resign or be removed. If you haven’t named a backup, a judge will step in. The court will essentially choose your replacement trustee—meaning the court system ends up with more control over your estate than you ever intended.
To prevent this, you must add depth to your estate plan by naming multiple successions of backup trustees.
What if there isn’t an obvious choice in your family who possesses both competency and capacity? You don’t have to force a family member into a role they aren’t equipped for. Instead, you can seek professional assistance by naming a corporate fiduciary, such as a bank, a trust company, or a trusted law firm.
Probate, unnecessary taxes, and predatory creditors are entirely preventable, but only if your trust is backed by the right leadership. Don’t leave your life’s work up to chance or court intervention.
Ensure your estate plan is airtight. Schedule your consultation with Cary Estate Planning today. Call our office at 919-659-8433 for a free discovery call and initial attorney consultation.
Or directly schedule a free discovery call at your convenience: calendly.com/caryep/discovery-call-get-started-cep-blog
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.