When a Brooklyn family sits down to read a parent’s will, they frequently spot two distinct titles named in the document: the executor and the trustee. Most families assume these are simply legal synonyms for the exact same job. They are not. The executor’s role is a temporary assignment to settle the estate, pay off final debts, and close out the deceased’s immediate affairs. The trustee’s role is an entirely different marathon.
Stewardship.
A will only requires a trustee if the document explicitly creates a trust upon the testator’s death—a testamentary trust. Instead of handing assets directly to a beneficiary, the will directs the executor to transfer those assets into the trust. From that moment forward, the trustee assumes control. In my practice, we use testamentary trusts to protect minors who cannot legally own property, to shield inheritances from future creditors, or to provide structured care for a beneficiary with special needs. The trustee is the individual or institution you appoint to hold, manage, and distribute that money over time.
The Fiduciary Duty of the Testamentary Trustee
A trustee is not merely a placeholder or an honorary title. The moment the Surrogate’s Court issues Letters of Trusteeship, that individual is bound by a strict fiduciary duty to act exclusively in the best interests of the trust’s beneficiaries. This is a heavy legal burden.
The trustee takes legal title to the assets, but they do not own them in any practical sense. They are a custodian. Under New York law—specifically EPTL § 11-2.3, the Prudent Investor Act—the trustee is held to a rigorous standard of care regarding how the trust’s portfolio is managed. A trustee cannot simply park a $1 million inheritance in a zero-interest checking account for fifteen years while inflation erodes its value. Conversely, they cannot gamble the principal on highly speculative ventures. They must invest the assets deliberately and prudently, balancing the need for growth with the preservation of capital.
Beyond investment management, a trustee’s core responsibilities typically include:
- Filing separate annual tax returns for the trust itself.
- Maintaining meticulous, penny-exact accounting records of every transaction.
- Providing periodic financial statements to the beneficiaries as required by law.
- Making distribution decisions based on the specific rules you established in the will.
The Burden of Discretionary Distributions
Managing distributions is often the most challenging aspect of the role. If your will states that a beneficiary receives a fixed amount every year, the trustee’s job is relatively administrative. We rarely draft wills that way. Fixed distributions offer terrible asset protection and ignore the unpredictable realities of life.
Instead, we typically grant the trustee discretionary power to distribute funds for the beneficiary’s health, education, maintenance, and support. This gives the trust flexibility, but it also forces the trustee to make difficult judgment calls. If a twenty-year-old beneficiary asks the trust for $50,000 to start a business, the trustee must evaluate that request. Is the business plan viable? Does this fall under support, or is it a reckless use of generational wealth?
The trustee must be willing to say no. They must have the emotional fortitude to deny a request that falls outside the boundaries you set, even if it upsets the beneficiary. This is precisely why naming the right person to serve as your trustee is one of the most critical decisions in your estate plan.
Choosing the Right Custodian for Your Legacy
Many testators default to naming their oldest child or a close sibling as the trustee. While common, it is not always prudent. Family dynamics complicate the administration of a trust. If you name an older sibling to manage a younger sibling’s inheritance, you permanently alter their relationship. Every time the younger sibling wants to buy a house or pay for graduate school, they must go to their older sibling and ask for money.
When we advise clients on selecting a trustee, we look for individuals who possess a specific combination of financial literacy, administrative discipline, and emotional distance. The ideal candidate understands basic investing, knows when to hire a CPA, and can execute your written intentions without being swayed by family guilt.
In cases involving substantial wealth, complex family dynamics, or trusts that will last for decades, we often recommend appointing a professional or corporate trustee. A bank or a trust company will never die, will never favor one sibling over another, and will administer the trust with strict adherence to the law. While they charge an administrative fee, the objective oversight they provide frequently prevents costly intra-family litigation in Surrogate’s Court down the road.
The Necessity of Intentional Contingency Planning
A testamentary trust might not fund until ten or twenty years after you sign your will, and it might continue operating for decades after your death. The person you name as trustee today might age, fall ill, or predecease the trust’s termination. If your sole named trustee cannot serve, the Surrogate’s Court will have to appoint a successor under SCPA § 1502—a process that is public, time-consuming, and entirely outside of your control.
We never draft a will with only one trustee. We build a deliberate chain of succession, naming alternate custodians who can step in seamlessly if the primary trustee cannot act. We also frequently include provisions that allow the beneficiaries, or an independent trust protector, to remove and replace a trustee who is failing to perform their fiduciary duties.
The role of the trustee is the engine that drives your long-term legacy. If your current estate plan names individuals to this role without clear instructions, backup candidates, or an understanding of the job’s demands, your plan is incomplete. Schedule a fiduciary review of your existing will with our office to confirm that the trustees you have named are truly the right custodians to protect your family’s future.
