Choosing a Representative in Estate Planning

by | Mar 1, 2022 | Estate Planning, General, Guardianships, Conservatorships & Elder Law, Insights, Probate & Trusts

Choosing a Representative in Estate Planning

When completing your estate planning, there are often tough choices that need to be made. These important decisions include determining who you want to make decisions on your behalf if you are unavailable, incapacitated, or pass away. The most common types of representatives include a personal representative/executor, trustee, power of attorney, and guardian. Choosing each of these representatives requires evaluation of different goals and considerations. Let us assist you in choosing the best personal representative, power of attorney, guardian or trustee for you and your family.

Personal Representative/Executor

Role of a Personal Representative/Executor

The person tasked with overseeing the probate process is called the “personal representative” in Idaho. Other states call this person the “executor,” but the position is the same. This person locates and inventories estate assets, pays any debts and taxes for the estate, and transfers estate assets through the probate process and in accordance with the decedent’s estate plan and state law. This person is also responsible for representing the estate in any litigation that may take place.

Things to Consider when Choosing a Personal Representative/Executor

  • Relationship to decedent and emotional connection
  • Background, education, other skills
  • Time commitment and availability
  • Location and proximity to estate assets
  • Willingness to serve
  • Financial resources
  • Conflicts that may arise(personal between family, inheritance issues etc.)

Trustee

Role of a Trustee

A “trustee” is the person that administers a trust. This generally takes place upon the occurrence of a triggering event such as appointment, incapacity or death. This person is typically responsible for locating and inventorying all trust assets, if necessary, and controlling, investing or distributing trust assets. This person would also be responsible for representing the trust in any litigation that make take place, including initiating an ancillary probate if needed. The specifics of the responsibilities often depend on the type of trust as well. When evaluating who should serve as trustee, you will want to review the considerations described above for personal representatives.

Types of Trusts

  • Typical Revocable Living/Family Trust
  • Irrevocable Trust
  • Family Asset/Cabin Trust
  • Special Needs Trust
  • Minor’s Trust

Agent

Role of an Agent

An “agent” is the person nominated to act on your behalf in legal, financial or healthcare matters, typically as appointed in a power of attorney. This person typically steps into your shoes and acts on your behalf, but the scope of the actions they are able to take is limited by what is in the power of attorney document. Notably, an agent serving under a power of attorney only retains their authority while you are alive.  Thus, when reviewing the below considerations for choosing your agent, they should be analyzed with that understanding.

Types of Agents

  • Financial
  • Healthcare

With a Durable Power of Attorney, you grant your agent the power to manage your property in the event you become incompetent or legally disabled. This can be a total grant of power enabling your agent to do anything that you would be legally able to do or a limited power of attorney that only grants your agent the ability to do a specific list of things on your behalf. Similarly, a healthcare power of attorney allows your agent to make decisions related to your healthcare on your behalf.

Things to Consider when Choosing an Agent

  • Location and availability, especially in an emergency
  • Capacity to honor your wishes
  • Ability to remove emotions from decisions
  • Background, education, other skills
  • Willingness to serve
  • Conflicts that may arise

Guardian

Role of a Guardian

A “guardian” is responsible for being the caregiver for your child should you not be able to. Essentially, they step into your shoes and raise your child(ren). A guardian is responsible for making day-to-day decisions for your child(ren) including medical and often financial matters. Typically, you will be considering naming a guardian in your estate planning documents should you and/or your spouse pass away.  In other cases, guardianships are established for minors where the parents are unable or unwilling to care for their minor children.  In those instances, the below considerations should be analyzed if you believe you are the right person to step in as guardian.

Things to Consider when Choosing a Guardian

  • Their location and availability, particularly their willingness to potentially relocate if needed
  • The guardian’s capacity to honor your wishes
  • Their background, education, and other skills, particularly considering their ability to parent your children and manage their finances
  • Their willingness to step into a parental role until your child reaches the age of majority
  • Whether their parenting style aligns with your beliefs, including religious beliefs, morals, philosophies, etc.
  • The guardian’s familiarity with your child(ren)
  • The guardian’s stability, including emotional, personal, and financial stability

If you think you may need assistance with navigating the appointment of an agent, the completion of your estate planning or the establishment of a guardianship, Madsen Beck can help you. Please contact us at (208) 321-6384 to schedule a consultation.

 

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