Who will make sure my Executor or Successor Trustee adheres to my final wishes? How can I be certain the instructions I leave behind can be enforced? There are at least 3 ways to make certain that your Executor/Successor Trustee does the right thing.
1. Have a clear plan in place
While there are many factors that can help, having a clearly written, comprehensive plan in place is paramount. An Executor of an estate or the Successor Trustee of a Living Trust has a fiduciary duty to carry out the terms of the plan they are given. To do that with ease, the plan must be clear, and it must address all things necessary. Ambiguity and lack of detail opens the door for confusion and misdirection once you have passed away. A clear and comprehensive plan is easy to execute and even easier to enforce.
2. Choose the correct Executor/Successor Trustee
Choosing the correct Executor/Successor Trustee for is also important.
You can choose a loved one (family or friend) or go with a professional such as an attorney or bank department, or you can set up Co-Executors/Co-Successor Trustees. There are pros and cons to each option. Choosing a loved one is the most widely used option. It offers your survivors the comfort of having a familiar person complete your estate wrap up, and it costs your estate less money by avoiding professional fees. However, it does place a great deal of responsibility upon your Executor/Successor Trustee.
Choosing a professional Executor/Trustee can ensure fairness, objectivity, and a thorough understanding of what has to be done in order to carry out your wishes. This option is often utilized if there are hints of disagreement or in-fighting among beneficiaries. The con to this option is that it usually costs your estate additional professional fees.
Co-Executors/Co-Trustees operate like a check and balance system. This is an option that can be used to spread the workload between a couple of people and to ensure that a solo Executor/Successor is not stalling the wrap up of the estate. This option does not fit every situation and is usually used sparingly.
3. Removal of Executor/Successor Trustee
What happens when an Executor/Trustee has strayed away from the clear plan you left behind? Usually, what we see are the beneficiaries not receiving what they are due or simply left wondering what is happening with the estate. The Texas Estates Code lays out the fiduciary duties for Executors/Trustees along with a path for removal. If necessary, we can request that a judge grant an order to remove/replace the Executor/Trustee who is failing to do the job correctly. Of course, this should be avoided, and it can be with proper planning.
With a clear and comprehensive plan in place that addresses each asset in your estate, your Executor/Trustee will know exactly how to carry out your wishes. It is important that you talk to your Executor/Successor Trustee about your assets and your intentions for your legacy. Communication and advanced planning will ensure your estate does not wind up needing the Court to enforce the terms of your plan.