Nominating Minors as Successor Trustees?

One of the biggest decisions in estate planning is deciding who should be nominated to serve as your executors and successor trustees in the event of your incapacity or death.

Typically, a married couple would nominate each other to serve and then their children in the event both Mom and Dad are unable to act.  In this case, a Will or Living Trust would read something like this:  "I nominate my Wife to serve as Executor or Successor Trustee. In the event that my Wife is unable or unwilling to serve by reason of death, incapacity or insanity, I nominate my children in the order of priority listed: Jonas Smith, Jody Smith-Baker and Jeffrey Smith ..."

If you nominate your children, be sure they are not minors when it is time to act. In California, an adult is someone who is age 18 or older. See California Family Code Sections 6500 and 6501.

Though you can nominate your children if they are minors, but they cannot act until they are at least age 18. You might want to nominate your very responsible 17 year old child to manage your estate and hope that you do not become incapacitated or die within the year. Many people do this. You would say I nominate my 17 year old son, Jonas Smith, if he has reached the age of majority, if not, I nominate X, Y or Z to serve.

You can also nominate persons to serve jointly as co-executors or co-successor trustees.

I tell my clients to nominate who they feel would be best suited to manage their estate and cause the least amount of conflicts. Many parents nominate their children according to birth order. Many nominate their two children to serve jointly. Many, knowing their children, nominate someone else entirely to serve. Some also consider nominating a corporate fiduciary such as a bank or trust company to manage the estate.

Work with your estate planning attorney. Share your fears, explain your family dynamics and, most of all, be very comfortable with who you nominate.