Help Wanted: The Jobs You Assign in your Estate Plan

Your estate plan spells out your wishes for the disposition of your property and your body and your wishes regarding life support. But your estate plan also includes appointments of trusted friends and family to several important jobs.

Here’s a quick overview of some of the roles to fill within your estate plan:

• Executor

  The executor is the person named in your will to administer your estate. Your nominee for executor will generally, but not always, be the person who works with a probate attorney to seek admission of the will to probate. Once the will has been admitted to probate and the Court has found your nominee suitable to serve, the nominee can officially become executor by receiving their “badge” showing them to be executor, called Letters Testamentary. These Letters Testamentary show the world that your executor has authority to act on the estate’s behalf and allow your executor to do nearly any legal action you could do while living. 

  Your executor’s job, in summary, is to gather the estate assets, pay or resolve any legal debts of the estate, and then distribute the remaining estate assets to the beneficiaries named in the will. They will also have a few Court requirements to meet, such as preparing an inventory and giving appropriate notice to beneficiaries and creditors. 

  Most well-drafted estate plans provide for independent administration, which mean the executor can generally act independently—that is, without having to seek Court approval for each action. Independent administration allows for an easier, faster, and generally more cost-efficient probate probate than a dependent administration. In an independent administration the active part of the executor’s job generally takes 6-12 months, or less.

• Trustee

  Whether your plan includes living trusts, which are created and used during your lifetime, or only testamentary trusts in your will which are created after your death, the trustee’s job is to manage property under trust for the benefit of the trust beneficiaries. For example, it’s common (and good planning!) for parents of minor children to provide that any assets that would pass to their children under a certain age go instead of a trustee to manage on the child’s behalf until the child is older. Trust planning may also be helpful for incapacitated beneficiaries. Some estate plan strategies, particularly for blended families may also call for marital trusts to provide for the surviving spouse after the death of the first spouse.

  If the will provides for distribution of assets to beneficiaries in trust, the Executor will distribute to the Trustee to get the property out of the probate estate, and thereafter the property will be managed by the Trustee according to the trust terms. Sometimes the same person may hold both jobs so they, wearing their “executor hat,” transfer the assets to themself to manage wearing their “trustee hat.”

  Depending on the plan details, you may only provide for contingent trusts, which may never come into being (for example, trusts providing for minor children, but no children are young enough at your death for the contingency plan to be needed). Some named trustees may serve not at all, for only a brief time, or for years. Typically, even if the trustee role is ongoing for a long time, it will require only minimal active time.

• Financial power of attorney

  Your agent under financial power of attorney (or, to use its formal name, statutory durable power of attorney) is empowered to manage your financial and legal affairs during your lifetime should you be unable to do so. The financial POA job is much like the executor job except it’s performed while you’re living. Within your power of attorney document you can choose which powers to grant your agent and may grant broad or narrow powers.

• Medical power of attorney

  Your agent under medical power of attorney makes medical decisions on your behalf, consenting to or declining treatment, if you are incapacitated. When acting as your medical POA, your agent is to make decisions based on your wishes, to the extent known, or, if unknown, based on what’s in your best interest. If you have an advance directive to physicians indicating your wishes regarding life support, your agent should take that into account and ensure your health care providers are aware of your wishes.

• HIPAA release agents

  The Health Insurance Portability and Accountability Act (HIPAA) limits the ability of your health care providers to disclose your medical information or records without your consent. The HIPAA release authorizes your health care providers to release your medical records to the listed agents. Being listed in the HIPAA release does not allow a person to make medical decisions for you (that’s the medical power of attorney’s job); it just ensures that they can receive information.

• Agent appointed for disposition of remains

  Your body is not part of your estate and thus, is not controlled by your executor. The appointment for disposition of remains document allows you to designate an agent authorized to make decisions regarding disposition of your remains, such as determining method of disposition (burial, cremation) and logistical details (final resting place, etc).

• Guardian of self

  Guardianship is the tool of last resort when a person is incapacitated and unable to care for themselves or their estate. The first line of defense in your estate plan to provide for future incapacity is your financial and medical powers of attorney and, sometimes, a revocable living trust. But, because we have to prepare for worst-case scenarios in estate planning, we take a “belt and suspenders” approach by also providing for who you would wish to have as guardian, and anyone you wish to disqualify from serving, in the event that, for whatever reason, guardianship were to become necessary.

• Guardian of minor children

  If you have minor children, one of the most important aspects of your estate plan is the provision for their care if you were to pass away. The guardian of a minor child consents to medical care on their behalf, decides where they should live and go to school, and generally makes “parenting” decisions for the child until they turn 18. Often, the same person who does this role may also manage assets on the child’s behalf as trustee and/or guardian of the child’s estate.

As you can see, the jobs can be broadly divided into post-death and lifetime jobs, and also into financial/estate management and medical. Many clients will choose to appoint the same people in the same order for all positions in their plan, while others may choose to have one list for financial matters and another for medical. While we don’t know your family like you do, we are happy to talk with you about considerations in naming agents to help you fill out the roster of agents for your plan in the way that will work best for you.

If you’re looking for help understanding who in your life might fit these roles best or are ready to create your estate plan, let’s chat.