By ALAN S. NOVICK
Scripps Howard News Service
05-SEP-05
When drafting your will, you might wish to consider designating an "advisor" to help ensure your wishes are carried out, especially as regards to minor children.
Some documents will use the term "advisor," while others may refer to a "director to the trustees." The advisor is not an official trustee, but is usually a person, in the family, or close to the family, who can guide the trustee in such areas as discretionary distributions to minors or persons with disabilities. The trustee can also be advised as to who should be named as a successor trustee, or what other professionals should be engaged.
Where trust assets include property in other states the advisor may be called upon to give advice or instructions as to the agents to be employed in the various other jurisdictions. Advisors sometimes have special skills or financial knowledge.
The scope of an advisor's powers is not easy to define, and the case law on the subject is sparse. What duty does a trustee have to follow the direction of the advisor or director? What judicial control is the advisor subject to? Is the designation of an advisor by an impermissible delegation of authority by the executor or trustee? What responsibility does the trustee or executor have to ensure the advisor is carrying out his duty? The answers to all these questions are murky.
Each individual must decide with his or her lawyer whether the use of an advisor is going to be a benefit to the estate or a burden.
(Attorney Alan S. Novick is a wills, trusts and estates lawyer. E-mail estate planning questions to an304@aol.com.)
