Selecting the trustee/executor to manage your desires for distributing your hard-earned farm assets is a very important task and can be a decision that causes anxiety. To help you think through this decision-making process, I will discuss some important factors to consider.
For this article, I am using these terms as follows:
- Trustee or Executor: The person chosen to manage or distribute your estate.
- Trust documents: A generic term for legal documents such as trusts or wills.
- Trustor: The person or married couple (or couple in a union) who establishes a trust to hold, manage or disperse property held in a trust for the benefit of the trustor or their heirs (referred to as beneficiaries) of the trust.
No matter how much time, energy, and resources are used to create your trust document, it is impossible to create a perfect one that accounts for every possible development or situation, so when selecting a trustee, the person(s) should be someone you know very well, and you find trustworthy and honest.
Often an adult child of the trustor is named trustee without careful thought. Many trustors make this decision without a lot of thought as to the ability of the adult child, who will need to be able to carefully follow through on the provisions in the trust.
Some of the reasons a particular child or children are selected to be the Trustee(s): oldest child, only child, proximity to the property/parent, most dominating child, most caring child, the best with money, the favored child.
Over the years, I have seen plenty of family explosions occur as a result of failure to select an adequate trustee. These include families never speaking to each other again, severely damaged sibling relationships, unfair distribution of assets/benefits, lawsuits, jail sentences, and family being severely harmed financially.
Remember, who you choose to be trustee will have a big impact on how well your instructions are followed and how well your children get along in the future. The job alone will be time-consuming and frustrating even if there are no problems arising from the settlement of the estate. Administering an estate is serious business.
If the trustee is believed to be showing favoritism, relationships can forever be damaged. This can lead to lawsuits. Some trustors place “no-contest” provisions in the documents to punish those who don’t agree with the distribution of assets/benefits, and this also can cause deep divisions. Sometimes family members perceive these provisions as a “right to steal” or to “take advantage” of the situation.
Some trustors choose only one trustee and other times two or more. There are pros and cons to each option. The number you choose may depend on the ability and personalities of the trustees selected. When more than one trustee is selected, they will have to agree on every decision, but they can also provide checks and balances for each other. They may also be able to share the workload and complement each other’s skill sets.
A carefully chosen single trustee can often manage the job alone. A successor trustee (a backup) should also be carefully chosen if the trustee can no longer fulfill his/her duties.
Here are some positive aspects to think about when selecting a trustee:
- The ability to understand the handling of money and to know when and where to get help.
- Fair and honest.
- Ability to communicate clearly and deal with difficult personalities.
- Have a clear understanding of the provisions of the trust documents and the trustors’ desires (the same is true for the beneficiaries).
- Patient and emotionally grounded.
- Demonstrated an ability to follow through on responsibilities and complete tasks.
- Naturally proactive to head off potential problems.
Below are some traits of people you likely should not choose as a trustee:
- Poor money manager (struggles to pay bills).
- Disorganized personality.
- Demonstrates difficulty in following through on responsibilities.
- Wants to “win” at all costs (argumentative and/or combative).
- Bullies or intimidates others, including you as the trustor.
- Natural risk taker or gambler.
- Too soft and naturally capitulates to others.
- Doesn’t naturally take advice or ask for help.
In the end, it is imperative that you think through who you select as trustee. No one you select will be “perfect” for the job, but it is up to you to select the “best” trustee for your situation.
If you do not have someone in the family that you feel is right for the job, consider a corporate trustee, which is often a bank trust department. If you go this route, you will want to analyze the person who will be the designated manager of the trust. Fees will likely be higher than if you use a family member or trusted individual.
A benefit of a corporate trustee is that if your heirs/children become frustrated in the process they will most likely take their frustration out on the corporate trustee and not each other.
When I worked as a trust officer in a bank, I had the responsibility of managing farm trusts. Two of these trusts had 24 beneficiaries/heirs each and both were ending at the same time. To be frank, the process was like herding cats. There were so many different personalities, needs, financial statuses and ideas.
Out of all 48 beneficiaries in these two trusts, there was one person who was the easiest to get along with throughout the whole process of selling and distributing the farms. They were the most helpful and financially secure. But when the asset disbursement day got delayed by a few weeks, they seemed to grow fangs and claws. This process can be stressful and stir up a lot of emotions.
No matter if it is a corporate trustee or not, your trustee will need endurance and grace. Managing trusts and dispersing assets is no easy task. Take the time to select the “best person” for the job. Your heirs will love you for it.
Kevin Brooks is the farm business management and marketing educator for Fulton, Mason, Peoria, and Tazewell counties in Illinois. He grew up on a corn and hog farm in Iowa. He has professionally managed and consulted on over 25,000 acres of farmland and marketed grain for farm management customers.