What if you really don't have someone to ask/appoint to be the executor of your will and/or trustee of your trust - and the trust is primarily funded by insurance policies after you are deceased (so, not a huge trust; would a bank still work as an administrator of a small trust?). And - what if you don't have someone to ask to have Power of Attorney for you in a time of need - or for the Health Care Directive. What are alternative options? I have nieces and nephews - but they are not willing candidates for these things.

You've struck a nerve here, GlassyGreen. The questions you've asked are the questions most people have when they decide to do their estate planning; i.e., who should be the executor of my estate, the trustee of my living trust, and the agent (attorney-in-fact) under my durable power of attorney and health care directives?

These positions are so-called "fiduciary" positions because the people who serve in these positions are representing the interests of other people, not themselves. As such, the law holds these "fiduciaries" to a high standard in carrying out their responsibilities and duties.

When pressed to make a decision regarding the appointment of fiduciaries under their estate plan, most individuals will choose individuals whom they know and have a high degree of confidence in. The logical choices that come to mind for most individuals are a spouse and/or children, then other close relatives, then someone in a professional relationship to that individual; i.e., an attorney, an accountant, a business associate, etc. In some cases, there may not be a suitable individual to serve in any fiduciary position. In that case, a bank or trust company may be a good option, although most banks and trust companies have minimum requirements for the value of trust or estate assets before they will agree to serve as a trustee or executor. For more detailed information concerning the selecting of trustees (and other fiduciaries), see our article entitled, "Selecting Trustees."

Still, if - as you suggest - there really is no logical or seemingly appropriate choice for an individual to serve as a fiduciary, and a bank or trust company is not a viable option either, then what do you do?

If the fiduciary position is the executor under your will, you really should designate someone under your will because, if you don't, then the probate court will appoint someone as the administrator of your estate. And, that someone will be an attorney that you probably never knew during your lifetime and your beneficiaries may not know as well. So, it's incumbent upon you to make every effort to find someone whom you believe will carry out your wishes after you're gone.

As to your living trust, the designation of a successor trustee should not that difficult (although I know it generally is). The key, I believe, is to focus on the objective of the trust. For example, if you have the trust solely to avoid probate and the assets will be distributed outright to your designated beneficiaries upon your death, then one or more of your designated beneficiaries are the logical people to serve as trustees - after all, it's going to be their property once you're gone, so they have the most interest in preserving your property and making sure that it gets to them with the least amount of delay and expense.

One or more of those beneficiaries should also be an ideal candidate to serve as successor trustee in the event you should become incapacitated, although you may decide that an independent trustee (such an attorney or an accountant) would be better. If you are inclined to think that an independent trustee is best for you, then now would be the time to develop a relationship with an experienced and highly-regarded attorney in your local area. Don't go on the cheap here. If you want your attorney to be your trustee (and executor), don't look for the lowest cost to get your estate planning documents prepared. Look, instead, for the integrity and reputation and experience of the attorney.

One other point: You indicated that your trust is rather small and consists only of the death benefits under life insurance policies on your life. Life Insurance death benefits do not pass through probate and they are not available to you during your lifetime. So, unless the trust is necessary to hold the death benefits for minor children, there is no reason for a living trust. You could simply name the beneficiaries directly under the life insurance policies.

If, however, there are minor children who are the beneficiaries of the life insurance policies, then the parents and/or legal guardians of those children are the logical individuals to serve as the trustee or trustees.

I will address the naming of fiduciaries under a power of attorney and health care directives in another post to follow.

Thank you - that was informative. I understand that the beneficiaries are the pool where I ought to draw from for my executor and trustee, but there are prohibitive issues and so I'm seeking to learn alternative solutions.

The purpose of the trust is to prohibit the money going in one lump sum to a particular beneficiary or their children. Part of the purpose of the trust is to assist with retirement planning for a niece and to provide some for her children as well.

I do have another niece who presently is sole beneficiary on my 401K and on my life insurance policies, with the understanding - made a few years ago (primarily via emails) that she would use the funds to pay off my debts and handle my estate, keep a designated amount for herself and the remainder be set up in a trust for the other niece for her retirement etc. - but the relationship with this niece has changed and she no longer is an option. That's why I'm looking for what my options are. And I understand that really need to get at least a Will done.

Another issue is that I live thousands of miles away from my beneficiaries - although we all live within the U.S. This raises the issue regarding one of them being my executor/trustee or having my POA or Health Care Power. It would be burdensome to them. It may be that when I retire I'll move closer to them - but maybe not. And it may be that I buy into a retirement community in CA where I live - but maybe not. Many unknowns at this point.

I appreciate your input - the more info I have about my options, the better my end decision will be. THANK YOU

Based upon what you've said, it's probably a good idea to remove your niece as beneficiary of your 401(k) plan and your life insurance policies as soon as possible. You really don't want to procrastinate here.

If you want some or all of your assets to go to your other niece and then to her children, consider making that niece the beneficiary of your 401(k) plan. In that way, your other niece could defer the taxation on your 401(k) by rolling it over to her own IRA. You indicated that you wanted to help that niece with her retirement and that's exactly what the money would be best suited for. If you did that, then your niece would probably name her children as the beneficiaries of any monies remaining in her rollover IRA, which accomplishes one of your objectives as well.

If you did that, then you could leave certain assets outright to your niece (or other beneficiaries) from your living trust immediately upon your passing and defer certain other assets for your niece's children until whenever you specified under the trust instrument. While those assets remained in trust for your niece's children, your niece could serve as your successor trustee. Who better to look after the financial best interests of her children? If that is not a workable solution, then I believe your interests would be best served by choosing an attorney who can prepare your estate plan and give you the assurance you need that your wishes will be carried out after you're gone.

One thought about naming someone as your agent under a power of attorney and a health care directive. If you don't have someone that immediately comes to mind as someone you'd want to serve in either of those capacities, then consider not naming anyone to those positions. Instead, let the probate court appoint a conservator for you. A court appointed conservator will be subject to court scrutiny and court approval for major decisions. An agent under a power of attorney is able to do everything without any supervision by a court or anyone else. Moreover, you can avoid most need for a power of attorney by making sure that your assets are held by your living trust. If you go that route, then you should make a document known as a "Pre-Designation of Conservator." This is a written declaration that simply says "If I'm not capable of making decisions for myself and a conservator of my person and/or estate is to be appointed for me by the court, then I request that ____________ be appointed as my conservator." Courts will generally follow your recommendation unless there is a good reason not to. Then give this declaration to your attorney and anyone else you believe should have it so that people are aware of it if you are ever in that position.

As to an advance directive, you don't have to appoint an agent to make health care decisions for you. You should, though, have a living will and a writing that explains what medical teatment you do or do not want if the situation arises. These documents you should leave with your primary physician to be placed in your medical records so that they will be available if needed.