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Jewish World Review Dec. 10, 2003 /15 Kislev, 5764

Jan L. Warner & Jan Collins

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Parents' trustee choice a hidden blessing | Q: Over the Thanksgiving holiday, my brother and I visited our parents, who are in their late 70s and in good health. Everything was fine until they told us they had just completed their estate plan and will appoint a bank trustee to handle their affairs, instead of either one of us. Can you imagine how hurt we were that our parents don't trust us, their grown children, to take care of a business that we will inherit anyway? Any suggestions about how to approach our parents to discuss their sudden change of heart?

A: Regardless of their rationale, can you imagine how difficult it must have been for your parents to tell you and your brother that they wanted an independent third person to act as their fiduciary, rather than burdening you both and potentially causing irreparable discord between you two? Although it might have been easier for them to let you find out after they had died or become incapacitated, they had the gumption to let you know now. Good for them!

Besides, who would want to act as a fiduciary in today's hostile environment? When an agent, trustee, personal representative or conservator handles money or property for a beneficiary, he or she may well be subjected to questions about the propriety of investments, expenditures or both, because as a fiduciary, an individual is held to high standards. If these are breached, it could result not only in personal liability for making poor investments or inappropriate expenditures, but also criminal responsibility.

Fiduciary responsibility precludes self-dealing and requires appropriate investment strategies that may be different for various beneficiaries. The "prudent investor rule" mandates that in developing investment plans, fiduciaries must consider not only the needs of the ward, but also the types of resources available, the potential for market trends and inflation, and the taxation effects of various investment scenarios. In most instances, family fiduciaries spend a lot of time and assume great risks without appropriate compensation.

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Whether your folks decided to spare you and your brother from this thankless task because of genuine concern for you, because they don't trust one or both of you, or because they don't care for your spouses is absolutely irrelevant. The issue here is that your parents have the right to plan in a way that makes them — not you — comfortable Perhaps the following poem, which was passed on to us by a friend, best describes why your folks might have done you and your brother a favor:

THE EXECUTOR, by Edgar A. Guest

"I had a friend who died and he / On earth so loved and trusted me / That ere he quit this earthly shore / He made me his executor.

"He tasked me through my natural life / To guard the interests of his wife / To see that everything was done / Both for his daughter and his son.

"I have his money to invest / And though I try my level best / To do what wisely, I'm advised / My judgment oft is criticized.

"His widow once so calm and meek / Comes, hot with rage, three times a week / And rails at me, because I must / To keep my oath appear unjust.

"His children hate the sight of me / Although their friend I've tried to be / And every relative declares / I interfere with his affairs.

"Now when I die I'll never ask / A friend to carry such a task. / I'll spare him all such anguish sore / And leave a hired executor."

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


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© 2003, Jan Warner