Whom should you choose to serve as your trustee? If you are having trouble answering this
question, you are not alone.
You may choose yourself, your spouse, your beneficiaries, individual or corporate third
parties, or any combination as co-trustees. Mainly you need to be concerned that whomever you
choose will carry out your trust's purpose. If they do not your beneficiaries will have a problem.
Obviously in naming your trustee you will look first to your trust's purpose. A marital trust,
established for the sole purpose of benefiting your spouse, is easily established with your
spouse as trustee. Since your spouse is the sole beneficiary, he or she owes no fiduciary
obligation to anyone and is clearly in the best position of anyone to see to his or her own needs,
assuming that he or she is capable. Upon the death of the surviving spouse, the trust will be
taxed to her estate. There is no room for mischief between the trustee and the beneficiary here.
On the other hand if the spouse is the trustee of a QTIP marital deduction trust with a life
estate in the spouse with a limited right to invade the principal of the trust, and the remainder to
the children, you have competing interests and you need to start thinking about your trustee's
Specifically you need to consider an independent trustee if: 1) the rights of income
beneficiaries and remainder beneficiaries are in conflict; 2) a beneficiary cannot serve because
of financial hardship such as creditor problems, marital problems, Internal Revenue Service
problems, or other similar issues; or 3) the beneficiary's judgment is at issue because of
immaturity, substance abuse, or incapacity.