estate planning trustees

“In the twenty-three years I’ve been practicing law, it has never, ever, ever seen co-anything workout,” I end up telling my clients. That’s a pretty bold statement, but it is absolutely true. I have never seen co-trustees, co-powers of attorney, or co-anything actually work out smoothly. The one universal exception being couples being co-trustees of their own trust.

There are several factors at play here that lead us to strongly recommend against having two or more people handle anything in the estate planning realm. First, everything slows down for every act, including something as simple as having both co-executors sign a form for the court. The most amicable situation had a fairly small probate go on at least four months longer than it needed to just because the co-executor brother would take several weeks to get forms signed and notarized. His sister was very nice about the whole thing even though she would sign things usually within a day of us calling her to come in, we would then overnight everything for her brother’s signature, and then the waiting and reminder phone calls would start. But the sister just shook her head and with a smile said, “That’s just my brother.”

A second downside is that it never accomplishes the main goal my clients are trying to achieve by having co-trustees or co-powers of attorney. Usually, they want to “spread the work around” so that no one person has too much to do. Unfortunately, no matter how obvious and direct attorneys are in drafting documents to say only one signature is required, banks, financial institutions, and government bureaucracies will often INSIST that everyone has to sign forms. Instead, we have learned to provide trustees and other agents wide latitude to hire or delegate tasks to others even if they end up being the sole person responsible. The trustee doesn’t have to pull out a calculator and do the taxes; they can hire an accountant. The trustee doesn’t have to scour the financial section of the newspaper and keep an eye on the stock ticker tape on CNBC; they can hire a financial advisor. They can even have family members and friends help by collecting information and helping fill out forms as long as the trustee is the one signing them. But putting two people in charge in most cases now means time spent on work is almost doubled because they both have to be responsible for everything.

Finally, some of our clients worry about family members fighting, and they believe that by putting everyone in charge it will prevent that. In fact, it makes things worse. What if the two kids disagree on something? If they can’t reconcile their differences, then it is off to arbitration to have the dispute settled. Now that will lead to some hard feelings. Instead, we recommend that our clients pick one person to be in charge who will try to build consensus but at the end of the day can simply make the hard decision on their own if there is disagreement. And what if there are three children as co-trustees with two of the children ganging up on the third? Not good news. We have many siblings, nieces, and nephews being put in charge as trustees rather than the kids if the parents believe there would be a fight, and that simply eliminates the family problems and hurt feelings altogether.

While there is a surface level appeal to the theory of having multiple trustees or powers of attorney, the reality is it usually triggers in-fighting, duplicative paperwork, and possibly even a family nightmare that will have siblings never talk to each other again. It’s why we recommend that our clients stick to naming one person to be in charge at a time.