What is the difference between an Executor and a Trustee?
An Executor is someone you have nominated in your Will to handle your estate in probate. Although you may have nominated them to serve, they do not have any authority to act until officially appointed by the court. In those cases where someone dies without a will, instead of the term "Executor", the term "Administrator" is used. The job is the same.
A Trustee is someone who is designated to act on behalf a trust. Many of the duties of a Trustee are similar to an Executor, but typically the court is not involved in the administration of the trust.
Who should I pick as an Executor or Trustee?
Many years of experience have taught me a number of criteria you should consider before picking an Executor or Trustee. Picking a relative "because he's (or she's) family", or a friend "because I have known him (or her) all my life" can turn into a disaster.
If you have a trust and have become incapacitated and unable to serve as your own trustee, you could find yourself living through this disaster and incapable of doing anything about it. If the wrong individual takes over after your death, your beneficiaries could suffer considerable harm. Picking the right individual is a big part of a successful administration of your estate. I cannot emphasize enough you discuss this with an experienced attorney. Practicing law as long as I have, I have run into situations that probably wouldn't occur to you. I can't tell you how many times someone has come into my office and said, "I never thought this could happen", or, "they told me this couldn't happen, but it did!"
Who should I name as the agent on my power of attorney?
Basically the same considerations apply as would in selecting an Executor or Trustee. The agent has a legal duty to act in your best interest. It is important you select someone you have complete confidence in to act as your agent.
The information set forth above is intended as a general summary of the most common situations incurred. There are many other circumstances which can create other situations providing other requirements and/or remedies, not all of which are addressed herein. Because of space limitations it is impossible to cover every contingency. You should consult a knowledgeable attorney for specific information related to your case.
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William J. Sweeney
Attorney at Law
Telephone: (916) 786-2011