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June 01, 2022

What jobs do I pick when I create my estate plan?

A typical Trust-based estate plan includes a Will, Trust, General POA, and Health Care POA. In the process of creating these documents an attorney will help you select a personal representative, guardian (if you have young children), successor trustee, general attorney-in-fact, and health care attorney-in-fact.

In estate planning, there are several roles or “jobs” in which you nominate individuals to serve. Here is a summary of each role in a typical estate plan:

1. Personal Representative. This individual is responsible for enforcing the terms of your Will upon your death. The Personal Representative typically oversees Probate Administration for any assets not transferred via a Trust (or another non-probative transfer). Ideally, (if your assets are correctly organized), this person will have a small job.

2. Guardian for any minor children. If you have children under 18, you will need to nominate someone to be their Guardian if you die while they are still in their minority.

3. Successor Trustee. This individual is responsible for carrying out the terms of your Trust upon your death. In most cases, you will transfer nearly all your assets through your Trust (thus bypassing Probate). Therefore, if you have a Trust, this is typically a more significant job than Personal Representative. Many trusts distribute money to beneficiaries in stages over several years. Accordingly, it is always good to include a list of backup Successor Trustees if your first pick is unable to serve (or cannot serve the entire time).

4. Attorney-in-Fact for General Power of Attorney. This individual acts as your agent for various legal and financial affairs (the specifics of which can be highly customized). You can choose to make this appointment effective immediately or subject to your incapacity.

5. Attorney-in-Fact for Health Care Power of Attorney. This individual acts as your agent to make medical decisions if you are mentally incapacitated.

With each of these roles, there are a wide variety of considerations.

Additionally, it is always wise to select back-ups for each role. No one is legally bound to serve. Likewise, many scenarios could interfere with your nominee from serving. An experienced estate planning attorney can help you navigate these choices and avoid any pitfalls.

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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