When it comes to estate planning, there are many important roles that need to be set in place in case you are suddenly unable to act on your behalf or are deceased. You want to nominate people you trust and rely on to fill these roles, which are called fiduciary roles. As you are contemplating the roles of the individuals you nominate as fiduciaries in your estate plan, you will want to consider the nature of each role. Read on for a closer look at each role, and the importance of the individual chosen for that role.
Executor Under the Will: This individual has the responsibility of managing your Probate Estate, channeling assets in the correct direction, “marshalling your estate,” filing your final tax return, making certain the existing Trusts are fully funded, and making certain that the interests of minors are taken care of. Your Executor provides the “checks and balances” after your death. I consider this individual to be the “CEO” of your plan after your death. Of course, your spouse is the “first in line” to be your Executor.
Trustee: The Trustee under your Trust has a similar job as the Executor, but in a more enduring way and has the obligation to manage, protect, and preserve the assets in the Trust for, often, many years. This individual is bound by the instruction in the Trust itself and is bound by fiduciary law to always act in the best interest of the trust, the trust assets, and your beneficiaries.
Guardian/Conservator: The Guardian/Conservator of your minor children will only be called upon to serve if both of you pass away when at least one child is a minor. The Guardian serves as a “Parent” to the children for all necessities, daily care, and decision making. The Guardian/Conservator will work alongside the trustee of the Trust with regard to the utilization of Trust funds for the children.
Health Care and Power of Attorney: Under the Advance Directive for Healthcare and the Durable Power of Attorney, your Agents’ job is limited to your lifetime. It is important to consider who will have the legal authority to make health care decisions for you if you are unable to do so yourself. Another important consideration in estate planning is planning for incapacity and/or mental disability to avoid a Court supervised guardianship or conservatorship. Worse yet, without these current documents, your loved ones will be denied access to make important decisions. These considerations should be an integral part of every estate plan, and yet the fact that the laws have changed significantly in recent years is often overlooked. Two important aspects of planning in this regard include the following:
- Deciding who will take care of your personal well-being, and (Health Care Advance Directive)
- Deciding who will take care of your finances (Durable Power of Attorney).
An Advance Directive for Healthcare allows you to choose someone to make your medical and other personal decisions if for any reason you can’t do so for yourself. It’s very important to select someone who will be readily available to make these choices for you, and with this document, that person will have the legal authority to do so. In addition, you should choose someone who will be comfortable making these decisions for you, otherwise, they may simply choose not to serve. Due to the status of the current law, what was formerly known as a “Living Will,” or “Medical Power of Attorney,” is essentially un-enforceable without also having appointed a Health Care Agent with the legal authority to carry out your wishes according to the current laws, which are addressed in an Advance Directive for Healthcare.
A Durable Financial Power of Attorney allows you to choose someone, called your “attorney in fact,” to manage your finances for you. Banks and Financial institutions highly scrutinize these documents and are reticent to enforce a Power of Attorney if it is not current and compliant with current State law. Even a Spouse will be refused access to your affairs if he/she does not legally hold this power.
Have Additional Questions? Contact Us
It’s a good idea to work with an experienced estate planning attorney so that you understand all your legal options and state requirements. At Brian M. Douglas & Associates, we can guide you through the estate planning process and make sure you know how to handle each step. We can help finalize your estate plan in the least stressful way possible. If you’d like to set up a consultation, please call (770) 933-9009 or use our online contact form. We’re always happy to help.
