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IDENTIFYING ‘MY PEOPLE’

Posted on October 19th, 2020

ESTATE PLANNING

THE ROLE OF PERSONAL REPRESENTATIVE and TRUSTEE IN ESTATE PLANNING

One of the most important tasks when planning for when you are gone, is identifying the people who are going to take care of “your stuff”. Who do you expect to step in and manage first things first, then second things, then divide up your stuff, then look after your children?

This can be a lot to ask of family or friends, so identifying these people is an important step.

First and foremost, we recommend that anyone over eighteen have three documents in place for estate planning, a will (final testamentary wishes), a durable power of attorney identifying someone to manage your financial affairs while you are living, (in the event that you are lost or incapacitated) and a health care power of attorney identifying someone to talk to medical professionals in the event that you are unable to. The second and third documents are effective while you are living, of course the first, your will, is effective only upon your death.

Secondly, you need to identify your personal representative, known as executor or administrator in some states. This is the person who will manage your affairs upon your passing. They will close bank accounts, they will identify insurance policies that should payout, they will make funeral arrangements and they will distribute your stuff, according to your wishes, that you captured in your will.

In the event that your estate must be probated, they will be the one filing the application for probate in court. This person will in essence “stand in the shoes of the decedent” to do what needs to be done to settle the estate. Down to finding homes for pets.

This should be someone that your trust, knows you well enough to ensure that they will manage things as you wish, calm, and able to handle discord. It can be a family member, a dear friend, your attorney, your accountant. For married people or those in long term relationships, it usually is their partner. Quite often people with adult children will name their eldest child. This often is done to keep the peace among children but make this choice if the eldest child is in the best position to take on this role. They may be better suited to be an agent for you while you are living and not have the management skills to manage your affairs after you are gone.

Think broadly. Discord? Many people think that won’t happen in their family…count on it.

If you have created a living trust or a testamentary trust (a trust created by your will that isn’t effective until you die and certain conditions exist), you will need to name a trustee for that trust. In the case of a living trust, you are most likely going to be the trustee while you are alive. A successor trustee is needed once you pass. This is usually your spouse if you are married, an attorney, a financial institution that has a trust division. Note that a professional that is identified will take a fee for administering a trust, which is usually a percentage of the value of the trust assets. In the case of a testamentary trust, you and your spouse have most likely both have passed, so needs to be another adult. Similar to your personal representative, this should be someone you trust, knows your wishes well, and is up for the task. It can be the same person as your personal representative but doesn’t have to be. This person has the task of managing your assets according to the trust written in your will. You will have directed that trust so will know what they must do. Similarly, you may be identifying guardians and conservators for any minor children that you may leave behind. Make these choices wisely. Identify backups and be sure you talk to the people you are considering to whom to pass on this responsibility, they may not want it!

For more information, contact an estate planning attorney from the Silverman Law Office today.

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