Am I Required To Serve as Trustee or Personal Representative?

April 27, 2015 - Posted by: admin - In category:

taxes - No Responses

You are NOT required to serve as trustee or personal representative of an estate.

I was recently contacted by an individual who wanted to know if he was required to serve as trustee of his deceased father’s trust. This person had been approached by a law firm in another state (the state where his father had recently died) for the express purpose of having my friend sign papers to assume the role of successor trustee. The law firm was anxious to move forward with estate administration (in part, no doubt, so the law firm could start collecting fees…just being honest). In the push to have this person sign up as the successor trustee, it seems that he was never informed that he was NOT required to accept that position of responsibility. After a brief conversation with me, he was very happy to learn that he had the choice of whether or not to accept the appointment. In this situation, for some very good reasons, the son elected not to become the successor trustee of his father’s trust estate and another person was appointed to fill this vacant position.

This simple (and quite common) example illustrates the very important truth that a person cannot be compelled to accept an appointment as trustee, successor trustee, personal representative, guardian, conservator or any other like positions relating to the trust administration or probate of a person’s estate or the care of a person or their assets during life. While it is often the case that the person or persons who are designated to serve in these positions are willing and able to do so, there are many situations where this is not the case. It is therefore very important that you understand that just because your name is in a “legal” document appointing you to serve in a designated capacity on behalf of another person or entity, this does NOT mean that you are required to do so. Rather, in this regard, you should consider such designation in the legal papers as a “request” that you are free to accept or decline. This all remains true when it is your parent or other family member (even your spouse) who has made this request by adding you as the designated person in the legal papers. Relationship by blood or marriage does not change the facts and you remain free to decline such an appointment, for any reason (or no reason at all).

So what happens when the person or persons who were designated to serve as trustee or personal representative all decline this job? Great question, glad you asked. The short answer is that most properly drafted trust agreements and wills have back-up mechanisms to provide for the appointment of a person or persons to fill such vacancies. The longer answer is that we will discuss this more another day. We will also discuss another day several important considerations to remember when you are determining who to appoint as your own successor agents (when the time comes).

Thanks for reading!

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