(People You May Need To Appoint In Your Will or Power of Attorney document)
As you think about your will, you will need to consider who you want to serve as fiduciaries. A fiduciary is someone who is trusted with responsibility for others and has the power and obligation to act under certain circumstances. If you are married, your spouse is the natural person to appoint to take on your responsibilities. You will also want to think about who should be appointed as the alternate, in case your first choice is not available. However, you do not necessarily need alternates for all these positions. If you are having trouble selecting people, call us and we can provide guidance.
Our clients often ask if they must ask a person before naming that person as a fiduciary. It is not essential to get a person’s permission, but of course it is a good idea to ask a person and find out if they are willing to serve.
This is the person who will take charge of your estate at the time of your death. The duties of the personal representative include making an inventory of assets and a schedule of the debts. The debts of the estate are paid by the personal representative out of the estate’s assets. After payment of the debts, the remaining assets are distributed according to the provisions of your will.
Guardian for Minor Children.
If you have minor children (under the age of 18 years), the court must appoint a guardian if both parents are deceased. The duties of the guardian are to take over the personal care of the children. This includes such responsibilities as deciding where they will live, go to school, what religion they will observe, and all the other personal decisions the parent would make if living. In your will you can nominate a person to serve as guardian. The court will almost always follow the nomination of the deceased parent. To the extent there is money available to the children, the guardian will handle the money. However, if the estate’s assets are in a trust for the children, the trustee will be responsible for handling the finances. The trustee and the guardian may be the same person or they may be different.
If you leave money to a trust in your will, you should appoint a trustee. This can be a person or a company (bank or trust company). After your estate’s assets are inventoried and the bills paid, your personal representative will turn over the remaining assets to your trustee. Your trustee has responsibility for managing the assets in accordance with your instructions in the will. Some wills may have more than one trust, and you can have the same or a different trustee for each trust. You can have co-trustees, and this is an excellent idea for some situations. However, co-trustees can complicate your trust so you should discuss this option with your attorney.
Agent For Financial and Health Care Decisions.
The person who has your power of attorney is called your “agent (sometimes called your “attorney in fact”).” This is the person you appoint to make financial and personal decisions for you while you are alive, but for some reason are unable to make these decisions yourself. For example, if you have a debilitating illness, serious accident, or some other tragedy that renders you either temporarily or permanently unable to make some or all of your own decisions, your attorney-in-fact can make them for you. This includes financial decisions, personal decisions, health care decisions, etc. Your health care agent and your agent for financial decisions can be different persons.
You should consider naming an alternate for all of the above positions. Your first choice may become unable or unwilling to serve, or may have to resign. Some circumstances that may result in your first choice being unable to serve include: death, illness, becoming too busy with other projects, divorce, moving out of the area, etc.
This information is general in nature and should not be relied upon for your specific circumstances. For information, questions, or comments, please contact Douglas J. Engel or Kathryn S. Kumar.