Should I Stay or Should I Go?

I had the honor of presenting to the Professional Fiduciary Council of Florida last week regarding considerations prior to accepting or declining the role of trustee or personal representative. The presentation was geared towards professional fiduciaries but sometimes, a decedent nominates a family member to serve in one, or both, of those roles. It’s important that any potential fiduciary consider these issues as well before accepting or declining their role as fiduciary.

The first thing every fiduciary must review is the governing document. The provisions may be straight forward – certain beneficiaries get specific distributions for health, education, support, or maintenance. The provisions can be wildly complicated too and allow distributions only when specific requirements are met by the beneficiary. The dispositive provisions of a trust document can make a trust administration very simple to administer or very complicated.

A deep dive into the trust or probate assets is also important. A potential fiduciary needs to know what, exactly, they are going to administer. There may be multiple pieces of real property, commercial property, or even business entities that you will need to oversee if you accept your fiduciary responsibilities. Or, maybe there is just one bank account and it will be easier to distribute to the beneficiaries. The most complicated assets tend to be tangible personal property – coins, artwork, furniture, jewelry, etc. Most beneficiaries have an idea of how they believe those assets should be distributed regardless of what the documents indicate.

Accepting the responsibility of serving as trustee or personal representative comes with a lot of obligations and potential liability. The most important thing you can do is consult an attorney very early and even prior to accepting your role as a fiduciary. Identify the potential pitfalls you may encounter and brainstorm ways to avoid them or whether it makes sense to decline the role. If you’ve been nominated as a trustee or personal representative and want to discuss what it all means and whether you should accept or decline, contact my office today.