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Imagine a single person with a net worth in the millions but less than 10 million. He / she is thinking about having a new will drawn up and setting a living revocable trust. Part of the idea behind the living revocable trust is to plan for a possible incapacity situation. If the successor trustee on the trust is a different person that the personal representative on the will, is that going to cause problems when the person dies?

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2 Answers 2

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If the successor trustee on the trust is a different person that the personal representative on the will, is that going to cause problems when the person dies?

Not necessarily. The personal representative of the probate estate is mostly charged with taking assets not titled in the revocable trust that are present at death and retitling them into the trust.

The trustee is charged with managing the trust assets.

Typically, you would want two people who are capable of interacting with each other in a civil manner and carrying out their respective duties, but that is all.

One reasons to have two different people would be to have a personal representative who is older to exercise discretion in distributing sentimental tangible personal property from the probate estate in a sensitive way, while having someone young serve as trustee if the beneficiaries are, for example, mostly grandchildren, since otherwise the trustee is likely to predecease the beneficiaries not long after the trust is created and before it terminates.

On the other hand, if the personal representative and the trustee are people who are estranged from each other and incapable of interacting in a civil manner, that could cause problems.

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In case of incapacity, there are several options. The person may grant someone power-of-attorney, while still in capacity, to take care of their finances and property. He or she may also appoint another person to be his or her attorney-in-fact for healthcare. If no one is appointed to do so, or if there isn't a surviving spouse or registered domestic partner, anyone may file a Petition for Conservatorship at the time the person becomes incompetent, to declare their incapacity before a court, which will provide the aforementioned rights to the conservator to handle and manage the principal's finances and make health decisions. The successor-Trustee of a trust, personal representative of an estate or executor of a will all begin to exercise their duties, only after the death of the principal or decedent. Typically, the successor-trustee, executor and personal representative are the same person, or siblings, who have a common interest, but conflicts may happen even between family members.

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