Appointment of Fiduciaries

There are three roles for fiduciaries that can be specified in a simple will: your personal representative, custodians for gifts to minors, and guardians for your children who are minors. In this part of your simple will you will identify who you want to choose to carry out the duties for these roles. Below we explain how appointments of fiduciaries are made and provide links to explanations of the roles of these three fiduciaries.

Required Reading

Appointment

When you name fiduciaries in your simple will, you are choosing now who you would like to act in a fiduciary role for you after you have died. As a testator, you are given this power to choose by writing your choice into your will. The fiduciaries you choose in your will are not empowered to act at the time the will is executed. Instead, your selection of each fiduciary will not go into effect until after you have died. Choosing a fiduciary is also called nominating or appointing them.

A person you have chosen to be a fiduciary may be unable or unwilling to take on that role after you die. Because of this, you are able to choose an alternate person to become the fiduciary if your first choice does not work out. You can name second, third, and further alternates as well, if you wish to do so.

If you fail to choose one of the fiduciaries in your simple will when one is required, a judge or commissioner will likely have to appoint one for you.

Fiduciaries

A fiduciary is a person who has been assigned specific legal duties and who has been given the legal authority to carry out those duties. A fiduciary always owes his or her duties to someone and can be held legally and financially responsible for failing to perform those duties. When choosing who you want to be your fiduciaries (and alternates), you should be sure to select people who are trustworthy, responsible, and capable of carrying out their duties. The people you select must also meet the legal qualifications to act as your fiduciary.

If you are unsure whether a person you want to appoint as one of your fiduciaries will qualify, you should ask an attorney to help you determine the qualifications of the person you have in mind.

Take some time now to read about the duties and qualifications of personal representatives, custodians, and guardians.

For purposes of your simple will, you will need to appoint your personal representative and the custodian for any custodianships that may be required. If you do not have any minor children and are confident that you will not have or adopt any minor children in the future, you do not need to nominate a guardian.

Considerations for Custodians

Testators often find it difficult to choose who to nominate as the custodian for each young person who may become a beneficiary under their will. Careful consideration should be given to the fact that you may be survived by grandchildren or great grandchildren who will inherit from you because their parent who is your descendant has failed to survive you. It is often helpful to realize you can name each beneficiary’s surviving parent (their parent who is not your descendant) as their custodian, assuming their surviving parents meet the legal qualifications to be a custodian. Rather than write out such a designation multiple times, once for each of your grandchildren and great grandchildren, you can simply state that you would want a “surviving parent” of each beneficiary to be that beneficiary’s custodian. If the beneficiary does not have a surviving parent, or the surviving parent does not meet the legal qualifications to be a custodian, then you can still name an alternate custodian to step in.

With that being said, you are free to choose any person who meets the legal qualifications to be the custodian of any custodianship required to be created by your will.

An Important Note about Guardians

It is common for a single parent to want to use a will to appoint a guardian for a minor child to prevent the child’s other living parent from obtaining custody of the child. A will cannot be used to take away a parent’s right to custody of their own child.

If you are a parent concerned about your child’s other parent obtaining custody of your child upon your death, you should immediately consult with a family law attorney who practices where you live. A simple will and these instructions cannot help you resolve this concern.

Write Your Fiduciary Appointments

Personal Representative

Open your copy of the simple will and locate the heading entitled FIDUCIARIES. Beneath that heading, find the paragraph entitled Personal Representative. Write in the relationship to you and the full legal name of the person you want to name as your first choice to be your personal representative, following the model language here:

Fiduciaries: First Choice of Personal Representative

If you wish to appoint an alternate personal representative, add your alternate’s relationship to you and full legal name following the model language here:

Fiduciaries: Naming an Alternate Personal Representative

If you wish to name a second alternate, follow the model language here:

Fiduciaries: Naming a Second Alternate Personal Representative

If you wish to appoint further alternates, add additional sentences following the same pattern of saying if your previous choices are unable or unwilling to serve, you choose yet another person to serve.

Custodian

After you have finished writing your appointment of your personal representative, find the next paragraph, entitled Custodian. You can make one appointment of a custodian of every custodianship that may be required to be created by your will. Alternatively, you can appoint a different person for each specific custodianship you believe may be required to be created by your will. Use one of the models here, depending upon your preference.

To appoint one person to be the custodian for all custodianships that may be required to be created by your will, use the following model language:

Fiduciaries: Naming One Custodian for all Custodianships

To name an alternate custodian, use the following model language:

Fiduciaries: Naming an Alternate Custodian

As in the appointment of alternate personal representatives, if you wish to name additional alternate custodians, you will continue adding sentences to this paragraph in the above format.

If you prefer to name the surviving parent of each beneficiary to be that beneficiary’s custodian in every custodianship that may be required to be created by your Will, use this language instead:

Fiduciaries: Naming Surviving Parents as Custodian

You can add alternate custodians to such a designation, just as you would if you had named a specific individual as the first choice.

Fiduciaries: Naming an Alternate Custodian after Surviving Parents

To appoint a different person for each specific custodianship, you will write a new paragraph for each specific appointment, followed by a final paragraph appointing a custodian for any custodianships you may have failed to mention. In the following model, repeat the text from paragraph 6.2 in as many additional numbered paragraphs as necessary to make your specific appointments, then put the text in paragraph 6.3 in a final numbered paragraph (renumbering it as appropriate).

Fiduciaries: Naming Custodians for Specific Beneficiaries

Guardian

After you have finished writing your appointment of custodian(s), find the next paragraph, entitled Guardian. If you do not have any minor children and are confident that in the future you will not have or adopt any minor children, you should delete this paragraph entirely. Otherwise, you will use this paragraph to write your appointment of a guardian for your minor children.

To name just one person, without alternates, to be the guardian of your minor children, use the following model language:

Fiduciaries: Naming a Guardian

To name alternate guardians, use the following model language, adding as many additional alternates as you decide to be appropriate:

Fiduciaries: Naming Alternate Guardians

Example Fiduciary Appointments

Below is an example of how fully-drafted fiduciary appointments might look in the simple will of a married testator who has minor children.

Once you have finished editing your fiduciary appointments, go back to the list of instructions.
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