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Appointing Guardians and Trustees for your Minor Children

The guardian of minor children. 

This of the person is a guardian a minor child, who will love, bathe, feed, and educate the child.Someone else (eg, the trustee) may have the money; this person has the child. We always discourage our clients from calling for a couple to serve as guardians of the minor children even though that is what most clients want to do. If a couple is named as guardians were later to divorce, there could be a custody fight over the children. Clients who want to name the wife’s sister and her husband as guardians, for example, should name just the wife’s sister as the guardian. If she is still married to her current husband, he will be part of the program; if they were to divorce, on the other hand, the intention of the clients is clear that it is the sister (and not her husband) who will serve as guardian of the minor children.

The trustee for minor children.

We recommend to most of our clients to create a trust for the benefit of minor children, so the funds left to the children will be available for their maintenance, education, health and support before they reach the age of majority. Should the same person serve as guardian and trustee of such Trust? If the clients decide on someone they trust to raise the children, they may rush to name that same person as trustee of the children’s money. While there is no legal or ethical reason not to name the same person as guardian and trustee there will be no effective review of the financial decisions until the children themselves are old enough to look back over the records. They might find, if the same person had the needs (guardian) and the resources (trustee), that the trust funds were used to put in a swimming pool that was used by the guardian’s family or were used to buy mini-van in whichthe guardian’s own children rode. If one person has the children and another person has the money, on the other hand, the guardian and the trustee will need to have a discussion before the swimming pool is put in or the mini-van is purchased. Hopefully, the trustee will suggest that the guardian pitches in for these expenses in view of his or her personal benefit for the expenditure. Certainly is not It wrong  for clients to name the same person to serve as both guardian and trustee; however, it is very appropriate for the estate planner to advise the clients of this risk if the same person were to serve in both capacities.

The successor trustee.

Whenever clients name an individual to serve as trustee, it is important for them to consider the fact that this person may decline to serve at all or, after beginning to serve, may resign, become incapacitated, or die. Who will serve as trustee if that happens? The clients should name at least one (if not more) successor trustees. The trust document should further address a scenario where all those people resign or become incapacitated, or die, the beneficiaries would select the successor trustee. If this is a separate trust for the benefit of one child, it is clear that this is the beneficiary who selects the successor trustee; if this is a family trust for the benefit of several children, on the other hand, the children should be instructed to select one successor trustee by majority vote. Trust shall provide that the guardian of any minor child can vote on behalf of that child. If a corporate fiduciary is selected by the client or is chosen after death by the children, it is critically important that the beneficiaries be given the power to remove the trustee and to name a successor corporate fiduciary. No one wants to be held hostage by a trustee who refuses to resign. Should the removal power also extend to individuals who are named to serve as trustee? Many clients easily understand the need to give the children the power to  fire a bank trust department, but may resist giving their children the power to remove an individual named by the client.

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Viktoria Beress
Viktoria Beress

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