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

Awareness of Legal Issues. Does the fiduciary have a solid grasp of the legal issues that may arise during the administration? Although a fiduciary need not be an attorney, the fiduciary must be aware of potential legal issues or, at least, know that consultation with an attorney or other expert is essential.

Impartiality. The fiduciary, especially a trustee of a discretionary trust, may be called upon to decide which beneficiary is to receive distributions and the timing and size of the payments. This responsibility requires the fiduciary to be fair and evenhanded with all potential distributee as well as to resist the persistent claims of those beneficiaries who believe that they are entitled to larger payouts.

Fiduciary "personality". An individual needs a special type of personality to serve successfully as a fiduciary. "A calm demeanor and a tolerant and understanding frame of mind will encourage beneficiaries to feel that their requests and points of view will be given a fair hearing. A willingness to spend time doing the job, an abundance of patience, and an objective outlook will gain the respect of those whose interests are at stake."

Longevity. An executor may need to serve for several years while a trustee may need to serve for many decades. Thus, the age and health of an individual fiduciary are often important considerations. The prospect of a corporate fiduciary being in business in the future must also be taken into account.

Proximity. The fiduciary should be someone who would be geographically available to serve. For example, it is difficult for an executor living in Alaska or a trustee from Hawaii to handle matters in Maine.

Lack of Distractions. A fiduciary must be able to perform the required duties without being unduly occupied by other concerns. If you select an individual, the individual (or a close member of the individual's family) should not be "experiencing any major personal problems, a divorce, change or loss of job, or illness" that could prevent the person from giving the trust or estate the attention that it requires.