Greenjungle - Who Do You Trust? Selecting an Executor, 1 of 10

Who Do You Trust? Selecting an Executor or Trustee - A Primer
by James V. Quillinan, Attorney at Law
The Letitia Building
70 South First Street
San Jose, California 95113-2406

A discussion of fiduciary options and some of the factors involved in making those choices, including --

Desirable fiduciary characteristics
Individual versus corporate fiduciary
Multiple and successor fiduciaries
Expenses and taxes

You must exercise great care in selecting your executors (personal representatives) and trustees. These decisions may affect your family for many years to come. As one commentator declared, "No decision is more critical than the selection of executors and trustees." Likewise, another writer has stated that "[t]he estate planning lawyer has as much obligation to counsel his or her client about [executor and] trustee selection as about other choices the client must make."

Decisions regarding the appropriate fiduciary to select are, naturally, for you to make. However, your attorney has a duty to explain to you the factors that you should consider before making designations in your wills and trusts.

Threshold Legal Criteria

Individuals and corporations must have the legal capacity under local law to serve as fiduciaries. Thus, you must be certain that your executor and trustee selections meet the applicable legal criteria.

Although these criteria vary among the states, the basic requirements are relatively uniform. For example, an individual fiduciary must typically be:

an adult (usually at least 18 years);
not incompetent or incapacitated;
not a convicted felon; and
not found to be otherwise unsuitable by the Court.

In some states a nonresident may not serve as a fiduciary unless the nonresident takes special steps, such as appointing a resident agent to accept service of process.