Should the trustee and executor be the same?

In New York, many people establish their estate plan with the trustee and executor being the same person. While that is common practice, it bears some inquiry whether it is the proper practice. The best answer is that it depends on the goal of the estate plan and the roles that the executor and trustee are slated to perform.

Stated simply, an executor helps guide the estate through probate while the successor trustee will manage the estate when the grantor becomes incapacitated. Naming the same person to both roles can help minimize time and expenses. With one person in the role, there is less of an opportunity for misunderstanding and discord. It will make it easier for the attorney to settle the estate.

However, concentrating too many roles in the hands of one person can reduce the amount of oversight. Over-concentration raises the risk of malfeasance because there is less supervision. Sometimes, it is best to spread control around because the more people who are watching each other, the lower the risk that someone does something wrong. Individuals should be mindful of state laws that could dictate whether one person can hold both roles. The best way to avoid this consideration in the first place is to make sure that the revocable living trust is completely funded so that there will be no executor.

Estate planning is a complicated area of the law that often requires the advice of an attorney. When estate planning is done wrong, there are far-reaching consequences that are not realized until it is too late. An attorney may advise what is best based on the specifics of the situation and suggest an appropriate solution that they help put into place.