No Country for Old Men: Don’t Name an Elderly Executor or Trustee
While I don’t have a lot of new material to share during my first consultation with prospects, a popular one-liner I use is “You’re not old until you are 92.” And while Christie Brinkly will be hotter than your college girlfriend and Chuck Norris will still be kick blasting 2x4s when they are nonagenarians, EVERYONE ELSE in their 90s is OLD. And being elderly and an Executor or Trustee can be a bad combination for both fiduciary and beneficiary alike.
In a world where we speak in real time with people 10,000 miles away, transfer millions of dollars with a tap on our cellphone, and travel to another country faster than the time it takes us to travel from our home to the airplane, elderly people rarely have the technological competency and physical ability to handle fiduciary duties required to adequately administer to a Will or a Trust.
Banks Often Require In-Person Visits:
Some estates have anywhere from 1 to 25 accounts held at banks, brokerage companies, limited partnerships, you name it. And you usually have to physically appear at these financial institutions in person. There may also be at least one piece of real estate that requires an in-person closing to sell the property. And what kind of sadist requests an elderly Executor who uses a walker clean out a 4,000 square foot home?. Same thing with having an avid Dick Van Dyke rerun watcher try to sell or wind down a deceased person’s business. Many Estate and Trust documents require in-person notarization, which is increasingly hard to find in several states. Add to this the fact that way too many elderly people let all of their picture IDs expire, making it impossible to both set up a new account for the Estate, and then actually collect these funds. You can see how naming an elderly person as a fiduciary comes with a lot of challenges.
Technological “Conveniences” Can Be Confusing to Implement:
While having accounts available to view online is great, dual-factor authentication isn’t so easy to complete if you are using a Jitterbug. Collecting funds from “trendy” custodians such as Coinbase, Robinhood and Gemini is a difficult task for most non-Mensa members. And even Magellan would have probably given up navigating a phone tree that travels through the Pacific Ocean. Just having the right software to Docusign Trust documents is challenging for people whose computer monitor is 16 inches thick. And don’t get me started on the difficulties elderly individuals have with Zoom and MS Teams, or how to sign remotely notarized documents, seeing how many don’t own a printer or (God forbid) a scanner, which some elderly people clearly believe steals their soul or something. Grandpa was built to defend the Pusan Perimeter, not earn a PhD in the computers and the TikTok.
An Elderly Person’s Problems Can Lead to HUGE Issues for Wills and Trusts:
Let’s not forget that as we age the chances of us getting sick, hurt or even (dare I say) dead increases dramatically. One hopes that the elderly Trustee still has the mental capacity to appoint a Successor Trustee, though this sometimes doesn’t happen because their sudden illness is severe or they are a bit stubborn, because who wants to confess they are not up to the task of being a reliable family member or friend. In this case the Court – who usually does not get involved with Living Trusts – must be petitioned to name a new Trustee. It’s even worse with Probate, and the Court MUST be involved with the appointment of a Co-Executor or Successor Executor. And the Court is about as trustworthy as that childhood bully who held your arm in a hammerlock and told you he wanted to try something that would totally not hurt you. These complexities inevitably add legal fees, time and frustration to the administration of a deceased person’s financial affairs.
If you must name an elderly individual as your trusted Executor or Trustee, you should absolutely name a younger co-fiduciary to serve with them. While this too may not solve some of the problems above (since both signatures may still be required for most transactions), at least the elderly individual can choose NOT to formally serve, thereby avoiding some of the hardship listed here. Thank your elderly friend or family members for their love and friendship, but do not burden them (or your Estate or Trust) with the serious responsibilities required to manage your final affairs.
