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Cedar Knolls, NJ 07927

Executors, Trustees, and Guardians. Know The Difference

At E.A. Goodman Law, LLC we know that estate planning can be complicated because there are a number of confusing documents and terms to understand. When you need assistance preparing a will or you have questions about planning for your children, we will provide you with trustworthy advice and guidance. Our practice is founded on the belief that an educated client is our best client, which is why we’ve taken the time to explain the important responsibilities of an executor, guardian, and trustee.

What is the role of an executor?

The purpose of a will is to declare how your property will be distributed after death. A will also allow you to name an executor, whose role is to faithfully carry out the instructions you’ve laid out in your will. In short, the role of the executor is to settle the estate, which involves fulfilling duties such as:

  • Filing a petition with the probate court 
  • Notifying designated beneficiaries and heirs
  • Conducting an inventory and appraisal of the estate assets
  • Paying the decedent’s debts to creditors
  • Filing the decedent’s final income taxes
  • Paying estate taxes, if any
  • Distributing the remaining estate assets to the heirs

Because an executor is considered a fiduciary, he or she must act in the best interests of the beneficiaries and can be held liable for mistakes or misconduct. This is why it is crucial to select an individual who is trustworthy and capable. Moreover, without a will, the court will intervene to appoint an estate administrator and your assets will be distributed according to the state’s intestacy laws. By creating a will and choosing the right executor, you will have peace of mind knowing that your loved ones will receive the inheritance you intended for them.

Can a trust also be established in a will?

People often think that trusts are only for those with complex estate planning needs, however, relatively common type of trust known as a testamentary trust can also be established in a will. A testamentary trust is typically established for the benefit of children, grandchildren, or other beneficiaries whereby the person making the will (the testator) instructs that certain estate assets be held in trust. The testator designates a trustee to administer the trust and the executor distributes any remaining assets to the trustee after the will has been probated. 

Like an executor, a trustee is also considered a fiduciary. A trustee has the highest duty of care to administer the trust for the benefit of the beneficiaries. A trustee is also responsible for preserving the trust assets and can be held liable for making imprudent investments. Once the estate is settled, the executor’s role ends, however, the trustee continues managing the assets until the trust ends, which could be a prolonged period of time. 

What is a testamentary guardian?

In addition to establishing how your assets will be distributed after you die, a will is the only way to designate a guardian for your minor children. In short, a testamentary guardian assumes responsibility for your children’s material, educational and healthcare needs in the event of your death. The guardian must also work with the executor and trustee to ensure that any estate assets are properly managed and distributed to the children. 

While it may be possible for someone to serve as both guardian and trustee, an independent party acting as trustee can also oversee the guardian’s activities. In any event, the person you designate as guardian must be willing to assume this role, have the ability to care for your children and also share your values. If you fail to name a guardian, the court will intervene to make a determination without fully knowing your family situation or wishes. 

Contact Our New Jersey Estate Planning Attorney

There are a number of considerations involved in preparing a will, particularly for those with minor children. The best way to protect yourself, your assets and your loved ones is to work with a trustworthy estate planning attorney. At E.A. Goodman Law, LLC we have extensive experience preparing wills, trusts and other essential estate planning documents. Our legal team routinely advises executors, trustees and guardians on their rights and responsibilities and always works to protect the interests of beneficiaries. When you become our client, we will provide you with informed representation when you need it most. Please contact our office today to set up a consultation.