I recently met with a couple in Manhattan who had a common concern. Their children are in their early twenties—responsible, but not yet seasoned in managing significant wealth. The parents wanted their will to provide for their children, but they worried that a large, outright inheritance would be overwhelming, if not destructive. They didn’t want to just leave money; they wanted to leave a legacy of support and opportunity. Their question wasn’t about if they should leave their assets, but how.
This is a frequent conversation in my practice, and the answer often involves creating a trust within the will itself—what we call a testamentary trust. But creating the trust is only half the equation. The other half is choosing the person or institution who will manage it. This individual is the trustee, and their role is one of the most significant appointments you will ever make.
Executor vs. Trustee: A Critical Distinction
People often confuse the role of an executor with that of a trustee. While one person can serve in both capacities, the jobs are fundamentally different. An executor is the person you name in your will to administer your estate. Their work is procedural and finite. They gather your assets, pay your final debts and taxes, and distribute the remaining property as your will directs, all under the supervision of the New York Surrogate’s Court.
The trustee’s role often begins just as the executor’s is ending. If your will directs that a portion of your estate be placed into a trust—for a child, a grandchild, or a relative with special needs—the executor transfers those assets to the trustee. From that moment, the trustee is in charge. Their duty isn’t to simply distribute assets and close a file; their duty is long-term stewardship. They manage, invest, and distribute trust funds according to the rules you laid out, a responsibility that can last for years, or even decades.
The Fiduciary Standard: More Than Just Trustworthiness
When you name a trustee, you are placing your legacy in their hands. The law imposes a strict standard of conduct known as a fiduciary duty—the highest standard of care in our legal system. It demands that the trustee act with absolute loyalty and good faith, always placing the interests of the beneficiaries above their own.
In New York, a trustee’s investment decisions are governed by the Prudent Investor Act, codified in EPTL § 11-2.3. This statute requires a trustee to apply a standard of “reasonable care, skill and caution” to the entire investment portfolio, not just to individual assets. This isn’t about picking one hot stock; it’s about a deliberate, documented strategy for preserving and growing the trust’s principal. The trustee must account for everything—every dollar spent, every investment made, every decision executed. They are answerable to the beneficiaries and, if necessary, to the court.
How to Select Your Trustee
Choosing a trustee is not a popularity contest. The person you enjoy spending time with is not necessarily the person who should be managing your child’s inheritance. The choice requires an honest assessment of a candidate’s skills, temperament, and circumstances.
Here are the questions I encourage my clients to consider:
- Financial Acumen: Does this person understand basic financial principles? They don’t need to be a Wall Street trader, but they must have the prudence to hire qualified financial advisors and the judgment to oversee their work.
- Impartiality: If you have multiple children, can this person act fairly toward all of them, even when their needs and personalities differ? Naming one child as trustee for their siblings can introduce a difficult and stressful power dynamic.
- Longevity and Health: Will your chosen trustee likely be able to serve for the entire duration of the trust? It’s crucial to name one or more successor trustees as a contingency.
- Willingness to Serve: Being a trustee is a demanding, time-consuming job with significant legal liability. Have a frank conversation with your intended candidate to ensure they understand the commitment and are willing to accept the role.
For some families, particularly those with complex assets or challenging family dynamics, a professional or corporate trustee—such as the trust department of a bank—is a better fit. While they charge a fee, they bring professional expertise, unimpeachable impartiality, and continuity that an individual cannot. The decision is deeply personal, but it must be made with intention.
Your trustee is the custodian of your legacy. Their job is to ensure that the resources you leave behind are used as you intended—to foster growth, provide security, and support the people you love most. It is one of the most important decisions you will make.
If you are thinking through whom to appoint for this critical role, a useful first step is to draft a clear description of the duties you expect them to perform. Schedule a meeting with our firm, and we can outline what this “job description” for your trustee should include.
