An estate plan is a comprehensive plan that expresses your wishes regarding your legal, medical, and financial affairs if you are incapacitated or upon your death. The person or entity you choose as your executor or trustee must be able to step in to make decisions for you. This person must be someone you trust to make critical, time-sensitive decisions on your behalf. They must have strong attention to detail and be able to communicate clearly and transparently with all involved parties. They must also have a strong sense of fairness and a commitment to ethical decision-making when carrying out your intentions for your welfare and the distribution of your property.
Each component of your estate plan may have a different designated person or agent to carry it out, or a single person might oversee everything. The legal duties of the person or persons you choose will be spelled out in each document. These duties are commonly referred to as fiduciary duties.
Who can serve in this role? Anyone you select can serve in this role as long as they have the ability to carry out the legal responsibilities and duties that are required of someone in that position. This answer does not change if someone has a physical, mental, or intellectual disability.
The Legal Requirements for Choosing Your Executor or Trustee
The Uniform Trust Code (UTC) is a model legislation that has been adopted in some form or another by thirty-five states. (1) The way each state implements UTC when they adopt it can vary, but they retain many similarities. As a result, they can be used as guidance on the duties and responsibilities of a trustee or executor. In addition, the states which have not adopted UTC have similar provisions in their trust and probate codes delineating who can be a fiduciary.
The UTC does not prescribe a specific legal test for qualifying someone as a trustee or executor. Instead, the responsible person or agency either needs to accept the duties in writing, start performing the tasks, or otherwise indicate their acceptance of the role. (2) This requirement applies to everyone whether or not they have a disability.
The Americans with Disabilities Act (ADA) provides protections for individuals with disabilities. This protection makes it unlikely that any state would risk going afoul of the law by prohibiting someone from acting as a fiduciary merely because they have a physical or mental disability. The ADA is federal legislation that is designed to prevent individuals with disabilities from experiencing unjustifiable discrimination.
On the other hand, if a person does not have the mental or physical capabilities to fulfill their duties as an executor or a trustee, the UTC provides guidance and specifically addresses the need to remove a trustee who has proven that they cannot meet their responsibilities.
Section 706 of the UTC states that a trustee can be removed at the request of a co-trustee, grantor, beneficiary, or the court “because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively….” States that do not follow UTC have similar provisions in place.
The Practical Application
After understanding the roles and responsibilities of the executor and trustee, choose the person you feel can responsibly carry out the duties. It does not matter if someone has a disability as long as the disability does not affect their competency in this particular role.
If you are unsure what the duties and responsibilities of an executor or trustee are, we can help. Once we have discussed the roles and responsibilities, you will be well-prepared to select your executor or trustee and feel confident that they can fulfill the role. If a person has a disability that makes it difficult for them to perform the fiduciary’s function, before moving on to another choice, consider whether technology is available to help them carry out their duties. Technology is available to meet the needs of individuals with low vision or hearing loss.
We welcome you to contact our office to help develop your estate plan and discuss the roles of the trustee and executor. These roles are critical in terms of trust and stewardship. Careful thought is needed to consider the most suited family member, friend, or professional to implement your estate plan successfully.
- See Trust Code, Enactment Map and Legislation, Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=193ff839-7955-4846-8f3c-ce 74ac23938d (last visited May 20, 2021).
- Tr. Code § 701(a) (Unif. L. Comm’n 2000) (amended 2005).
- 28 C.F.R. § 35.130.