Who’s Who In the Estate Planning Process
Your estate plan will require others to act on your behalf when you die or if you become incapacitated and unable to make decisions for yourself. Therefore, understanding the differing jobs in managing your estate and understanding what makes a successful nomination is critical. This is an effort to explain these issues.
Successor Trustee or Executor:
Trustees adminiser trusts and executors administer wills. This person will likely be selling your property, if appropriate, combining these proceeds with your remaining estate, paying your creditors, making any specific gifts and then distributing the remainder according to your wishes.
This person should be, first and foremost, unquestionably trustworthy as they will have complete access to funds and property of the estate or trust. He or she should be detail oriented and capable of accounting for his or her actions. Therefore, someone who can’t seem to balance their own checkbook or have a history of making bad financial decisions should probably not be nominated to handle your will or trust.
Lastly, we generally don’t recommend co-trustees or co-executors. It is often a recipe for disaster as they must act unanimously or not act at all. This often leads to arguments that cannot be resolved absent court intervention.
Agent for Property and Finances (Non-Trust):
This person would be managing your affairs while you are alive, unrelated to your trust, if you become incapacitated (successor trustees act regarding trust assets if you become incapacitated). Agents often deal with the following issues:
- Employment: Obtaining paychecks, file disability, request vacation, FEMLA rights, etc
- Finances: Pay your utility bills, your mortgage, etc
- Government Benefits: Social Security, SSDI, Medi-Cal, Medicaid, etc.
- Insurance Benefits: Health, auto, disability
This person requires the same characteristics required for a successful successor trustee or executor.
Agent for Medical Affairs:
This person will be making decisions on your behalf regarding your medical treatment if you are unable to act on your own behalf. An agent for medical affairs could make decisions regarding the following:
- Removal from life support
- Choosing physicians
- Authorizing autopsy
- Donating organs
- Arranging for disposal of remains (cremation, burial, etc.)
Your agent in this regard should share your beliefs regarding right to die, medicinal philosophies, etc. They should also be willing to carry out your wishes. For example, if you want your agent to remove you from life support under certain conditions, make sure you have spoken to them to ensure they will actually “pull the plug” if that time ever comes.
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