Who should I appoint as my backup trustee and executor? This is perhaps the most common question posed by my estate planning clients. I recently studied the kings of ancient Israel. I thought that those of us who counsel clients on making appropriate key individual or “fiduciary” appointments could apply a few lessons learned from the lives of these kings; specifically, how not to appoint successor fiduciaries. As you and your clients consider their various fiduciary appointments, consider the following three principles taken from the stories of ancient Israel.
- Inform your family while you are still healthy
First, appoint a trusted friend or family member while you are in good health, and let your decision be known among your friends and family. If you have studied King David’s life, you know that while David was known as “a man after God’s heart,” David made many mistakes, especially in marriage and parenting. Perhaps by reason of the intra-family political pressures that arose because of his polygamous marriages, it appears that King David spoiled his many children and was an emotionally-distant father. David sought to avoid becomes involved in the inter-family disputes that arose in his household.
Towards the end of his life, David was so ill and infirm that a beautiful young woman (“Abishag the Shunammite”) was brought to lay with the old King at night to keep him warm. 1 Kings 1. In this context, King David’s oldest living son, Adonijah, appeared to have won the support of King David’s closest advisors, becoming the presumptive heir to the throne. In a set of circumstances that only a trust and estate litigator would love, one of King David’s wives, Bathsheba, came to King David and reminded him of a promise previously made– that Solomon, who was David’s son by Bathsheba, would be King David’s successor. At the very moment that Adonijah was using taxpayer dollars to openly and lavishly celebrate his own accession to the throne, King David openly pronounced that Solomon, not Adonijah, would succeed to David’s throne.
While none of us are currently leading a nation of millions, you or your clients should not make the same mistake as King David. Many of my clients, not wanting to “stir the pot” among family, will “punt” on making important fiduciary decisions. By not making a decision, strife and animosity among family members is far more likely to occur after death. It is always better for our clients to tactfully articulate their fiduciary decisions while healthy, even if they ultimately change their minds at a later date.
- Avoid naming a child in a position of authority over a sibling’s inheritance.
Second, avoid appointing an adult child in any legal position of discretionary authority over financial assets earmarked specifically for his or her sibling. Where an adult child is designated in an administrative role, such as a personal representative, executor, or under a power of attorney, there is generally no direct conflict with the appointed child’s siblings. However, in situations where a child is given discretionary authority over the use and consumption over his or her sibling’s inheritance, painful animosity often arises where this one sibling becomes the legal “gatekeeper” of another child’s financial inheritance.
After King David died and Solomon succeeded to the throne, Adonijah was left as a son without a kingdom, a child without a meaningful financial inheritance of his own. 1 Kings 2. In a move that signaled his desire to establish a symbolic kingship in the name of his father, Adonijah asked Solomon for permission to marry Abishag. After already having made an attempt to the throne during David’s lifetime, and now this subsequent symbolic attempt following David’s death, Solomon rightly viewed Adonijah as a continued threat to his own throne. Rather than let this threat continue, Solomon had Adonijah put to death.
While our kids are not involved in “battle to the death” struggle over kingdoms, our children might feel that way if a sibling is named as a trustee of his or her portion of a substantial inheritance following death. Rather than place a child in a no-win decision with regard to a sibling’s inheritance, clients should consider other alternatives. Clients could consider an aunt, uncle, trusted friend, or even a professional trustee to manage the child’s inheritance. Any of these options are better than naming a sibling as a trustee. As one professional trustee I know often quips, “the professional trustee is not coming to Thanksgiving dinner.”
- Consider the identity of the fiduciary’s advisors
Third, consider who the potential fiduciary will turn to for advice after death. Whether a potential fiduciary will make good decisions can be often predicted by the identity of the individuals from whom they obtain advice. Following the death of King Solomon, King Rehoboam succeeded to the throne. Immediately upon his accession to the throne, Rehoboam was confronted with conflicting counsel. 2 Chronicles 10:8. One set of advisors, who were his father’s advisors, counseled in favor of reducing the severe tax burden that King Solomon had imposed, while a second and younger set of advisors advised Rehoboam to increase the tax. Rehoboam ultimately chose the younger set of advisors, and the result of the increased tax burden was a revolt and a splintering of the nation of Israel. In our case, if your clients name their children as fiduciaries, who will they turn to for advice and counsel? Are they are more likely to lean on a group of trusted professional advisors, their spouses, or perhaps “Cousin Eddie?” Clients should consider not simply the capacity of the candidate to make decisions, but also the candidates demonstrated history of how they obtain advice in making important life decisions.