Can I Appoint the Same Person as Personal Representative, Trustee, and Guardian?
By: Barry E. Haimo, Esq.
April 16, 2021
BARRY HAIMO: In Florida, you may appoint the same person, persons, or entity as executor—or personal representative in Florida—trustee, or guardian of person or property of your children. Just make sure it’s somebody that you trust.
Can Personal Representative and Trustee Be the Same Person? Yes. But Should They Be Is a More Important Question
What does that mean?
As mentioned in the video, your trustee, guardian, and personal representative may all be one individual. In fact, you may already have a person in mind for all three of these roles.
However, each of these jobs has a great deal of power and responsibility attached. Moreover, someone with a good skillset for one of them might not be the best choice for another.
Because of this, it’s important to remember that in many situations it’s probably a good idea to distribute these important responsibilities among and between several different people.
To help you choose the right person for each job, we’ll take a closer look at what roles your personal representatives, guardians, and trustees will perform after you pass away.
Understanding the Difference Between Personal Representatives, Trustees, and Guardians
Put simply, a personal representative is someone in charge of settling your affairs when you pass away. Your personal representative will have to hire an attorney, identify assets, beneficiaries, and creditors, pay your debts, bills, and taxes from your estate, and generally be the point person for taking your will through the process of probate. After these affairs are settled, your personal representative will be responsible for distributing your assets according to the instructions in your will — all subject to judicial approval, of course.
You should name someone you trust as a personal representative — someone you believe will settle your affairs honestly and efficiently. Close relatives, spouses, and adult children are usually chosen for this role. Your personal representative may hire the services of realtors, brokers, CPA, and so on to deal with complex estate issues.
This person should be named in your will. However, if no person is named or there is no will, the courts will appoint someone to serve as your personal representative.
A trustee is the individual who manages a trust. For example, if you created a trust for the benefit of your children, your trustee would be responsible for managing the assets in that trust.
During their lifetime, many people choose to be their own trustee or share this responsibility with their spouse as co-trustees. In this scenario, if one spouse dies, the surviving spouse can continue to manage the trust with no additional judicial action required.
The trustee you name in your will is sometimes called a successor trustee. This person will step in to manage your will when you are no longer able to do so due to incapacity or death. Adult children could be named as trustees. So could a close relative or trusted friend. A corporate trustee, such as a bank or trust company, is also a possibility. Some choose to use a combination of all these options.
There are several different types of guardians — or at least several different roles they can play.
Guardian for you. In the event you become incapacitated, a personal guardian can be appointed to take care of you since you can no longer care for yourself.
Guardian for your children. If you pass away before your children become adults, you can name a guardian for them in your will. This individual will then be called upon to step in and raise your minor children in the event you pass away and are not survived by another parent. They will be responsible for the education, healthcare, and developmental needs of your children.
Guardian for your children’s property. It is also possible to name a guardian of the property of minor children. This individual’s role is to ensure their property is adequately maintained until the children come of age and are able to take over this role themselves.
As you can see, “can personal representative and trustee be the same person” (not to mention guardian) is less of a legal question and more an issue of whether you believe one single individual is the best person for all of these roles. No matter who you choose (or how many people), make sure you have absolute trust in them.
Originally published 5/18/15. Updated 4/16/21.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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