I need advice about choosing a trustee and custodian for my daughter. I want to make sure after I die my daughter will be taken care of and get money that I saved for her. I can’t decide whether to have my brother in Thailand or my friend in the USA be a trustee. What will you suggest?
Will there be any court order or approval for any payment transactions before the designed-trustee can withdraw money from my bank account?
Will there be anyone to check and make sure all withdrawal transactions were for my daughter? Is there a case that a designated-trustee took everything and ran away?
I also want my family in Thailand to be my daughter’s custodian but my ex-husband (American) disagreed. How will my Will be affected by my ex-husband’s Will? Any suggestion will be appreciated.
In your fact pattern, I recommend that you set up a revocable living trust with a pour over will. The trust will take care of you and your daughter. In the event of your death, the will sets out the guardian, but the will is only probated if all the assets are not in the trust.
The job of trustee for a minor child is a challenging one. You should also remember that the trustee will take care of you in the event of your illness or incapacity.
Rather than answer who, I ask you to consider the character traits of each individual in this light. A trustee manages your assets when you are incapacitated or in the event of your death, and invests the money for the trust in the best interests of the beneficiary. A trustee should be good with numbers, good with investments and have knowledge of taxes and tax filings. The trustee should also be familiar with your family and your family values. In addition, the trustee should be able invest the trust assets and make distributions to you (if you are disabled) and your daughter (in the event of your death).
Which of the people you are considering have these qualifications? If you still cannot decide, you might want to consider both of them together. Two trustees would answer your questions concerning safeguards. Since both have to agree to investments and distributions, one would be responsible for watching the other to make certain that the distributions were in the best interests of the beneficiaries.
With regard to your ex-husband, if he is the biological father of the child, under the laws in most of the US, he is first in line to have custody of your daughter. You can’t fight that. You could note in your will, if your daughter’s father does not wish to be the custodian, you could list your family in Thailand.
That being said, I would also recommend that you ask your trust attorney to draft the trust so that there are options. For example, I want this to happen if my family is custodian. However, if my ex-husband is custodian, I want stricter provisions to make certain the money goes to my daughter and not her father.
Remember also, that the older your child gets, the more decision making power she will probably have in choosing her own guardian. Don’t get stuck with this issue. A trust is designed to be used in the future. If you get stuck on too many issues, the documents will never be prepared.
This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.
Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
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