Watch This Lesson
Every estate plan ends up in somebody’s hands. You name an executor, or a successor trustee, and the plan assumes that person will do the job. Most of them do.
Some do not. They stall. They sit on the house because selling it feels like a betrayal, or because they think they can time the market. They stop answering calls. They refuse to show anyone the document. Occasionally they help themselves to more than they are owed.
Renee Parris calls this going rogue, and her answer to it is the part most families never learn: the final enforcement power in an estate plan does not belong to the fiduciary. It belongs to the beneficiaries.
First, Know Where the Authority Comes From
The remedy depends on which kind of plan you have, because the authority originates in two completely different places.
A will. A will does nothing until you die and a probate judge validates it. Your executor has no power the moment you pass — they have a nomination. The court appoints them.
With a will, there’s a judge involved, a probate judge. It’s his or her responsibility to make sure that your wishes are carried out… The judge gives the authority to the executor or the administrator to do what you said.
A trust. A trust is a private contract that does not go through court at all. Your successor trustee steps in on their own authority, granted by the trust document.
In a trust, there is no judge. It’s a private document. It never goes to court… The successor trustee basically replaces the judge and the executor… One person doing both roles. The trust gives the authority.
That privacy is a major advantage of a trust. It also means no judge is watching, which changes how a problem gets addressed.
When an Executor Will Not Move
A will is built to liquidate and distribute, reasonably promptly. It is not a tool for holding assets indefinitely — that is what a trust is for. An executor who decides to wait three years for a better market is not exercising discretion. They are failing to execute the will.
If an executor is trying to control time, doesn’t want to sell the house or just emotionally isn’t ready to… the beneficiaries can go to the judge and say, we’ve got an executor that’s not doing what the will says they’re supposed to do. The judge, if he finds that to be true, will remove that executor and appoint somebody else so that your wishes do get, the transactions happen the way you intended for them to be.
The probate case is already open and the judge already has jurisdiction. Beneficiaries petition, the judge reviews, and the judge can remove and replace the executor.
There is a related right worth knowing. A will is private while you are alive. After you die, a beneficiary is entitled to see it.
Once you’re gone, if they are a beneficiary of that will, they have the legal right to know what’s in it. If the administrator or the executor is not giving it to them, they can petition the judge to remove them and appoint somebody else.
“You will find out when I am ready to tell you” is not a position an executor gets to hold.
When a Trustee Will Not Move
No judge is supervising a trust, which is exactly why people assume there is no recourse. There is. A trust stays out of court unless someone takes it there.
On the trust side, if the trustee goes rogue, what do they do? Because there is no judge. It is the only time that a judge would get involved. So beneficiaries of a trust can do the same thing. They can get legal counsel and they could go to a judge and they can say, we’ve got a trustee that went rogue. They won’t give us our stuff.
Beneficiaries retain the right to retain counsel and petition a court. The court can compel an accounting, order distributions, remove the trustee, and appoint a replacement. The difference from probate is that someone has to initiate it.
The Fee Problem
Trustees are entitled to reasonable compensation for real administrative work. Renee’s reference point is that it is broadly comparable to what a money manager charges — often in the neighborhood of 1% of assets under management, though it varies by state, by trust terms, and by whether the trustee is an individual or a company.
Reasonable is a legal standard, and it gets abused.
In one example that I know from a personal situation, a trustee was taking excessive fees. So every time they were giving a distribution to the kids, they were taking that same distribution as a fee instead of taking a reasonable fee. So the kids went and found a lawyer, got guidance, went before a judge and said, we’ve got a trustee that’s taking basically like… taking too much money out of our trust. So the judge removed that trustee and put another one in place to make sure that that happened the way it was supposed to.
Matching every distribution with an equal fee is not compensation, it is a 50% cut. The beneficiaries caught it, took it to a judge, and the trustee was removed. Which is the whole lesson: the mechanism worked, because someone used it.
You Do Not Have to Draft a Relative
If nobody in your family can handle this impartially — or if naming one child over another would itself cause the fight — you can hire the job out.
There are third-party companies that all they do is trust management. They will manage your trust again for a fee. They don’t start charging for the fee until they’re managing it. Of course, while you’re alive, you’re doing it. But those are third-party disinterested management companies that will make sure that your wishes get carried out.
A corporate trustee is disinterested by design, does not get emotional about the house, and charges nothing while you are alive and serving as your own trustee. The cost is real, and so is the neutrality.
Two Things People Forget
Nobody is obligated to take the job.
Just because you named somebody doesn’t mean they have to fulfill that role. They can say no and it passes down the line to the next successor trustee.
Which is why you name more than one successor — and why you ask the people you name before you name them.
If the list runs out, the beneficiaries fill it.
What if all the trustees are gone? We’ve still got assets. We’ve still got beneficiaries. Again, that’s when the beneficiaries can amongst themselves either go to a judge and say, we need a trustee or they can agree on who’s going to be a trustee as the beneficiary… The beneficiaries have to agree on who the new trustee is.
The trust does not collapse. The beneficiaries either agree on a replacement or ask a court to appoint one. Agreement is cheaper.
The Point
At the end of the day, the real power to make sure that everything gets where it’s supposed to go lies in the hands of your beneficiaries.
A well-drafted document is necessary and not sufficient. Enforcement requires someone who knows they are a beneficiary, knows roughly what the plan says, and knows they have standing to ask a judge for help.
So:
- Name at least two successor trustees or alternate executors, and confirm each one is willing.
- Consider a corporate trustee if impartiality is the problem you are trying to solve.
- Make sure your beneficiaries know they are beneficiaries, and that they have a right to see the document and to receive an accounting.
- If your trust pays a trustee fee, make sure the document defines it rather than leaving reasonable to interpretation.
- Tell your beneficiaries that a judge can remove a fiduciary who will not perform. People who know that rarely need to use it.
The best protection you can build into a plan is beneficiaries who understand what they are entitled to.
This article is for educational purposes only and does not constitute legal, tax, or financial advice. Fiduciary duties, trustee compensation standards, beneficiary information rights, and the procedures for removing an executor or trustee vary by state and by the terms of the governing document. Fee figures are illustrative only. Consult a licensed estate planning or probate attorney in your state about any specific situation involving a fiduciary.
About the instructor: Renee Parris is an estate planning educator with over 30 years of experience. This article is a companion piece to Renee’s course, Estate Planning, Simplified.
