After four (4) decades of practicing law in the area of estate planning, I have come to realize that many client initial estate planning objectives tend to create new problems, rather than solving such issues. Why and how is this possible?
Examples of such issues may involve both married couples, as well as single clients. Such problem issues arise when clients desire to appoint Successor Co-Executors of a Will, Successor Co-Trustees of a Revocable Living Trust, or Successor Co-Attorneys in Fact under a Durable Power of Attorney. While it is true that naming Successor Co-Executors, Successor Co Trustees, and Successor Co-Attorneys in Fact are legal planning options, it does not mean they are desirable estate planning techniques. Such arrangements frequently give rise to a series of questions and problems including the following:
- Does the Will, the Trust or the Durable Power of Attorney contain a dispute resolution clause in the event the two (2) appointed individuals cannot agree on a specific decision? Without such a clause in each of the above documents the two (2) individuals named in a fiduciary capacity may be required to go into Court to resolve such disputes. This is the complete antithesis of a client’s desires.
- Does the Will, the Trust, or the Durable Power of Attorney contain language permitting one (1) Successor Co-Executor, one (1) Successor Co-Trustee, or one (1) Successor Co-Attorney in Fact to act independently from the other Co Fiduciary? Failure to include such a clause will frequently cause long delays in achieving a client’s estate planning objectives
Whenever the issue of appointing Successor Co-Executors, Successor Co-Trustees, or Successor Co-Attorneys in Fact arise in an estate planning conference, I always inquire of the clients: “Are the two (2) individuals you desire to appoint to such fiduciary roles capable of working together without major conflicts?” In many cases children appointed in such fiduciary roles may live at a long distance from one another, and may also only agree with each other in the presence of a parent. Once the parent, as the controlling figure is incapacitated or deceased, conflicts often occur between such Successor Co-Executors, Successor Co-Trustees or Successor Co-Attorneys in Fact.
During an initial estate planning conference when clients express the desire to appoint two (2) individuals in a fiduciary capacity as described above, I share with them the potential problems discussed above and also state: “We are here to solve problems not create new ones.”
My role as an estate planning attorney is not to tell clients what to do, but rather explain to clients the potential consequences of their decisions. In most cases clients are totally unaware that such problems may exist. Therefore, many client objectives become excellent examples of: “Good intentions lead to the most undesirable results.”
While such arrangements are entirely legal, they may result in major conflicts between Co-Fiduciaries. Likewise, please understand the appointment of Successor Co-Executors, Successor Co-Trustees, or Successor Co-Attorneys in Fact are totally unrelated to the disposition of a client’s estate. Finally, such potential conflicts reinforce my belief that the most difficult decisions clients face are not tax related, but are personal in nature.