In your estate planning documents, you will name individuals and/or corporate fiduciaries to serve in certain roles. Below you will find a detailed description of each role.

Notes:  

• If you are naming the same individual or corporate fiduciary in multiple roles, you need only list his/her/their home address, phone number and email address once.
• For married and unmarried couples, list both names above as “Client Name” if you intend to name the same individuals or corporate fiduciaries in all roles. If not, submit a separate form for each spouse or partner.

You will name your Executor (or Personal Representative) in your Last Will and Testament. Your Executor may be an individual or a corporate fiduciary, such as a bank or trust company. Your Executor’s responsibilities may include any or all of the following:

• Decide if probating your Last Will and Testament in court is necessary. The decision of whether to probate a Will depends upon the laws of the state in which the Will would be administered, as well as the value of the property that will pass via the Will (if any
• Make sure the Will is filed in the appropriate probate court. This may be required by law even if the Will does not need to go through probate.
• Find and contact your family members and/or the beneficiaries of your estate. Your Executor is generally in charge of making sure the property that is named in the Will goes to the right people.
• Find and gather your assets. Your Executor is also responsible for keeping the assets safe until they can be properly distributed to those named in the Will or to creditors. This management of assets can include deciding which and what types of assets to sell as well as what kinds of assets and property to keep.
• Continue necessary payments. Using estate funds, your Executor will make mortgage, insurance, and other recurring payments that need to be paid during the administration of the Will.
• Wrap up your affairs. This can include everything from canceling credit cards to notifying banks about your death. In addition, if you were already collecting Social Security benefits, your Executor must notify the Social Security Administration of your death.
• Pay off valid debts and creditors. In general, before any person named in a Will can receive any inheritance, your debts and creditors must be paid off. Your Executor should notify all creditors of your death and find out how they wish to proceed.
• Pay final income taxes. Generally, your Executor is responsible for making sure that your income taxes for the last year you were alive are paid and that the necessary returns are filed.

If you would like to name a friend or family member as your Executor/Personal Representative, and if he/she is not a professional fiduciary, that’s not a problem. He/she may hire (and in some states, is required to hire) attorneys and professional advisors to help with the administration of your estate.

You are using a Revocable Trust as the dispositive document of your estate plan. If you have properly aligned your assets during your lifetime, it is possible that your named Executor will have little or no responsibilities upon your death. Instead, the Successor Trustee of your Revocable Trust will carry out the responsibilities listed above. Since their responsibilities may be similar and even overlap, it is common to name the same individual or corporate fiduciary as your Executor and Successor Trustee.

 

Who is your first choice for Executor / Personal Representative of your estate?

Who is your second choice for Executor/Personal Representative of your Last Will and Testament?

As explained above, the Successor Trustee of your Revocable Trust may effectively replace the named Executor of your Last Will and Testament. However, if your Revocable Trust provides that assets will be held in continued trust for the benefit of the beneficiaries (rather than outright distribution), your Successor Trustee may have long-term responsibilities. Your Successor Trustee will also begin to act in the event of your incapacity during your lifetime (if, for example, you suffer from dementia and can no longer manage your financial affairs.

In addition to the duties listed above, your Successor Trustee must:

• Administer your Revocable Trust according to the terms of the trust document. Your Successor Trustee must fully understand the terms and provisions of the trust document, including any discretion granted to the Trustee (such as discretion over investment or distribution decisions.
• Prudently manage trust assets in alignment with investment objectives. Most Successor Trustees will follow the “prudent investor rule” in managing trust assets. This means that the Trustee must exercise care, skill and diligence that a prudent person acting in a like capacity and familiar with such matters would use to conduct his/her own affairs. The Trustee must also manage any unique assets such as real estate or closely held business interests.
• Use and distribute trust assets for the purposes described in the trust. Your Successor Trustee must become familiar with each beneficiary’s needs and circumstances, balancing the needs of all beneficiaries, both current and future. The Trustee must regularly communicate with the trust beneficiaries and provide pertinent information as needed.
• Account for and report on trust assets, and prepare the necessary tax and regulatory filings. Your Successor Trustee must keep complete, accurate and detailed records of all income collected, expenses, purchases, sales and other transactions of the trust. The Trustee must also file periodic and final accountings as required by the trust document and/or state law, as well as fiduciary income tax returns when appropriate.

You will serve as the initial Trustee of your Revocable Trust. Upon your incapacity or death, who is your first choice for Successor Trustee of your Revocable Trust?

Who is your second choice for Successor Trustee of your Revocable Trust?

A financial power of attorney gives a named individual (your “Agent”) the authority to handle financial transactions on your behalf. This may include investments, bank transactions, insurance, claims and litigations, family obligations, retirement benefits, Social Security, bills and debt payments and taxes. When a power of attorney is “durable,” it remains valid and in effect even if you become incapacitated and unable to make decisions for yourself.

If you have a Revocable Trust, and if you have properly aligned your assets during your lifetime, your Successor Trustee may be responsible for some of your Agent’s traditional duties. However, your Successor Trustee cannot control assets that cannot be titled in the name of your Revocable Trust, such as retirement plans. Therefore, an Agent under a Durable Financial Power of Attorney is still necessary.

Who is your first choice for Agent under your Durable [Financial] Power of Attorney?

If that individual is unable or unwilling to serve, who is your second choice for Agent under your Durable [Financial] Power of Attorney?

A Health Care Power of Attorney (a/k/a Designation of Health Care Surrogate) sets out your wishes for health care if you are ever too ill or injured to speak for yourself. Your Agent (or Surrogate) will work with doctors and other health care providers to make sure you get the medical care you wish to receive. When arranging your care, your Agent must follow your treatment preferences to the extent that he/she knows them.

If you have a Living Will, your Agent is also instructed to carry out your wishes should you be in an end-stage condition, terminal condition or persistent vegetative state.

Who is your first choice for Agent under your Health Care Power of Attorney?

If that individual is unable or unwilling to serve, who is your second choice for Agent under your Health Care Power of Attorney?

You will name the guardian(s) of any minor or incapacitated children in your Last Will and Testament. Here are some questions to consider when selecting individuals for this important role:

• How well do your children and the potential guardian know each other? Do they enjoy spending time together?
• How do your moral values, educational levels and socioeconomic levels compare? If the potential guardian has children, do you have similar parenting styles? If applicable, do you share religious/spiritual beliefs? If there are differences between you and the potential guardian, consider how they would be resolved.
• Where does the potential guardian live? Would your children have to move away from a familiar school, friends and neighborhood? Would your children move into their guardian’s home, or would the guardian (and possibly his/her immediate family) move into your home?
• What is the age and health of the potential guardian? Parents often want to name their own parents as guardian, but they are concerned that the grandparents may not be able to care for their grandchildren at that unknown future time. We recommend that you name the individual(s) who you would want to serve today. You can and should name one or more individuals as alternate guardians if your first choice is unable to serve.
• Does the potential guardian know that you intend to name him/her/them in your estate plan? If not, you should discuss the role with them, along with the questions above.

If both parents should die, who should be named as the Guardian(s) of your minor or incapacitated children?

If that individual(s) is unable or unwilling to serve as Guardian, who should be named as alternate Guardian?