In past articles I’ve spoken about how to appoint the proper fiduciaries (executors, trustees, guardians, etc.). But what about those people that you don’t want?
Most of my clients don’t realize that you can “dis-appoint” someone in your documents. You actually have the ability to add almost any language you want in your documents, whether it’s in your Will or in your trust. You can use strong language, such as that a specific person should not serve in any circumstances. Or you can use weaker language, writing that you encourage the court to consider your other nominees, and not to consider the person you feel is undesirable.
Why would someone want to do that? Sometimes it’s a fairly objective reason. If your cousin takes his shoes off because he needs to use his fingers and toes to add larger numbers, he’s probably not the guy to handle your estate or maintain a trust for your children.
In other words, a person may not have the right qualifications. Someone may appear to be a good candidate, such as having an accounting or financial background. But he or she may not have the wisdom, judgment, or temperament to serve properly. While some estates require transactional skills to deal with real estate or business assets, other estates require interpersonal skills to meet the needs of beneficiaries who are minors, are elderly, or have capacity issues.
A second reason is that the person may have disqualifications. These may not be a lack of skills, but more negative or undesirable traits like gambling, drug or alcohol abuse, a criminal record, or other things that may not be so well known. So, without explicitly disclosing the issue, you can simply say in your estate planning documents that this is a person you do not want to be considered, and keep the matter private.
A third reason, distinct from skills and/or negative traits, is more philosophical in nature. When you’re talking about a fiduciary such as a guardian or a trustee of a child’s trust, you want to make sure that he or she is on the same page as you about things such as child rearing, secondary education, religion, or even cultural traditions.
These are things that come up from time to time. You may feel a person’s philosophy is different from yours, and therefore you don’t want him or her to serve. You might love the person and want him or her involved, but serving in a role of authority is a different matter. Once you’re gone, you’re going to have to trust the person to follow your instructions. Just remember, simply because he’s your oldest son doesn’t necessarily make him the right choice.