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Choosing a New York Executor or Other Fiduciary – Some Considerations

shutterstock_96626974-300x225Estate planning in New York is important for many reasons.  Primarily, when a person plans their estate, they are ultimately creating documents and situating assets to reflect their intentions regarding the ultimate disposition of these items.  Nowadays, estate planning is often viewed as a broader topic and includes papers that are referred to as advance directives.  These would include a Power of Attorney, Living Will and Health Care Proxy.  The more traditional estate planning papers include a Last Will and Testament, and possibly a living revocable trust or even an irrevocable trust.  The New York Probate Lawyer Blog has published many articles relating to the various documents identified above.

Any type of planning document requires that the person creating the paper consider the selection of various types of fiduciaries.  These fiduciaries include executors, trustees and agents acting pursuant to a power of attorney or health care proxy.  It may also include the nomination of a guardian for a minor child.  In most cases, the appointment of a fiduciary is simple and the choice is typically a spouse or child or other close relative or friend.  However, there are many situations where the selection is not as clear cut and various considerations need to be taken into account.

One issue which should be analyzed is whether the proposed appointee is willing to accept the appointment.  Not everyone wants to accept the responsibility of being an estate executor or trustee of a trust.  It is always a good idea to ask the proposed fiduciary if they would accept the appointment.  This avoids having to find a replacement once a document comes into effect.  While a substitute appointment in the document is always advisable, there is no assurance the substitute would be available or want to accept the task.

Another consideration is the ability of the person nominated to handle the type of assignment to be proposed.  Some individuals may be better at financial matters such as a trustee for funds to be managed and disposed of in a structured way.  Other individuals may be better suited to make personal decisions as a health care proxy or a guardian for a minor child.

Additionally, thought should be given as to whether a fiduciary would have any conflict of interest.  This is especially important where a nominee may have discretion regarding investments or the payment of income and principal while also having some interest in an estate or trust as a potential beneficiary.  Also, the personal dynamics that may exist between the fiduciary and beneficiary should be reviewed.  If these individuals have had conflicts among themselves in the past, it may not be beneficial to place them in a situation where personal animus may be present.

Fiduciaries can be appointed to act alone or there may be co-fiduciaries.  The essence of creating any type of planning is to insure that the plan reflects the desires of the person creating it and that it will be carried out without any problems.  The last thing a person would want is to put into effect a plan which is thwarted or complicated solely due to the actions of the executor or trustee or guardian who has been entrusted to facilitate the creator’s intentions.

I have represented clients in creating plans and solving probate and Surrogate’s Court and guardianship problems for over 40 years.  Call Me Now for a free confidential review of your issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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