If minor children have lived in the home of a divorcing couple, serious consideration should be given to finding a method of division that allows the spouse who retains physical custody of the children to remain in the family home. This is regarded favorable by many judges, and is generally considered to be in the best interests of the children. It also lessens the sever economic burdens that may be placed on the spouse with custody. It may seem one sided for one spouse to have custody of the children and to have possession of the family home. In reality, however, in nearly every divorce situation in which children are involved, it is the spouse without custody who fares better economically.
Settling an estate requires someone to have custody of your property and money after you die. When a will is used the court will appoint a personal representative (executor or executrix) over the probate of your will. If you do not leave a will the court will appoint a personal representative as an administrator over your property and money. When a trust is used your successor trustee is the person who has custody over your property and money. Regardless of whether you use a will or a trust, the person you select is very important. In your will you select a personal representative by nominating this person. You do the same in your trust. You nominate a successor trustee to yourself. The personal representative and successor trustee take over after you die. Or, if you become incompetent or incapacitated and you have a trust, then the successor trustee would assume his or her duties.
The personal representative is nominated by you, but is appointed by the probate court. The successor trustee is nominated by you and assumes their office and duties after you die. A court is not normally involved with appointing a successor trustee to a trust.
You should only nominate someone who you have confidence will hold the office with integrity and who you know will accept the job. It is a thankless one for sure.
Normally it is only reasonable to provide for compensation. Usually compensation is a percentage of the gross estate. For example in probates the amount the personal representative is paid is set by statute at 2.5% of the gross estate. Most people feel after having served that this is way too low. You may provide for a greater amount in your will. In your trust you may provide for compensation. Five percent is not unreasonable, sometimes more, sometimes less, depending on the size of the estate and the work that is anticipated. Also you may provide for hourly compensation. If you do not want your trustee or personal representative to be compensated, then you may provide there is to be no compensation. This is often the case when the individual who is to serve is left a portion of the estate and has agreed in advance.
The trustee and personal representative will need to work closely with the will, trust and probate attorney to insure that the testamentary document is correctly followed and that they are protected from personal liability. It is very important that before the assets are distributed that the beneficiaries have been communicated with, provided a copy of the testamentary document, an inventory, accounting of receipts and expenditures and the balance on hand, and put on notice of the no contest clause (if your trust or will has one), and the necessity of signing a release of all claims for the trustee (if your trust or will requires this).
Closing and distributing an estate is difficult in itself, not to mention dealing with the sometimes confusing legal issues that can arise within families whose members may be hostile to the personal representative or successor trustee. If you need an experienced probate, will and trust attorney, contact Brent D. Coldiron, attorney at law, 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 41 years experience handling a variety of legal matters, including probates, wills, trusts, business formation, elder law, Medicaid qualification for nursing home care, corporations, limited liability companies, and guardianships. Give Brent a call, he knows what to do!