Legal Question in Wills and Trusts in Minnesota

Responsibilities as Executor

I'm not licensed in your state.... BUT if your uncle is the Executor of your cousin's estate, then it is his function to carry out the wishes of your cousin's will regarding distributin of your cousin's estate... and NOT to come up with his own ideas of what would be a good plan or to create trusts which were not set out in the Will.Be VERY careful here in getting involved as the Trustee of Trust created in the probate process when there was a valid Will that did not create a Trust.You could be looking at a whole heck of a lot of fussing and fighting in court over this in the future.

Serving as trustee for your cousin's children

Your question raises many issues. My first suggestion is that you engage a trusts and estate lawyer to assist you. Second, your uncle may not set up trusts just because he wants to. He must follow the distribution instructions in your cousin's Will. You should obtain a copy of that Will and read it for yourself.There are many publications that provide information about serving as trustee. Your local probate court may have some of these, or you can ask that attorney that you visit with.

Trustee's Duties

Before agreeing to take on the duty of a trustee, you should ask for a copy of the (proposed) trust in order to read exactly what the duties of the trustee are. It may just refer to your state's statutes, which you should be able to find in the local library. If there is something you do not understand or with which you are not comfortable, you should consult an attorney (you don't have to tell the executor that you are doing so) to clarify things.

A trustee has two basic responsibilities: (1) administering the trust (which will probably include filing a tax return - probably the attorney or an accountant will prepare that for you) and (2) investing the assets. For any of these responsibilities you would normally be entitled to hire professional help where needed. For example, you could hire an attorney (the estate's attorney might be just fine for this) and an investment company or investment advisor.

It is true, however, that a trustee is a "fiduciary" which means that, should you make a really bad mistake, you may be personally liable for any loss incurred by the two beneficiaries because of your malfeasance.

Also, I wonder - does the will of the deceased give the executor the power to set up such a trust? Or does state law allow it? Get a copy of the will and take it also to your own attorney (one who is qualified to advise you about wills and trusts). It is probably OK to use the estate's attorney for all of these things, so long as he/she is competent in these areas.

Do not be inhibited from asking the attorney any and all questions that occur to you. And it might be wise to get your responses in writing for your protection.

Another concern is whether you are tough enough to say "no" if one of the kids wants money and you don't see that his desire is justified. You become a financial caretaker, so to speak, and that can be difficult for you emotionally, especially if the young beneficiaries are too demanding. You in a sense will be in the role of protecting them against themselves (their own youth, ignorance, and even stupidity).

Think it through carefully. What you are feeling is one reason that people often appoint banks as trustees - the bank will be less emotionally involved than you will be. Of course, the bank is probably going to charge more than you will.

This raises my final point. Trustees are entitled to be paid for their efforts. As a family member, you may not wish to be paid; that is up to you. But at least make sure that the trust will be able to reimburse you for any expenses that you may incur in the administration of the trust.

That's a lot to think about, isn't it?