In the event of illness or incapacitation, most individuals have an idea as to how health matters and property distribution should proceed. However, delegating complete authority over your estate administration to one individual to serve as Trustee, Personal Representative (formerly Executor in Massachusetts), and agent under a Health Care Proxy and financial Power of Attorney can be a significant and oftentimes difficult decision. Personal integrity, familiarity with the needs of your estate, financial knowledge, competency, and willingness to take on such responsibilities are the more obvious qualifications of a Personal Representative, but there other important considerations.
Paula and Don have approached an estate planning attorney to modify their Estate Plan after the tragic death of their eldest daughter. Paula contends that the couple should designate the next in birth order as the Personal Representative, having one of their twin daughters, Laura or Molly, named. Don argues that their youngest son, Bobby, a financial advisor, should assume the role as the more practical choice. Who should be selected?
Choosing the eldest child, regardless of his or her ability to do the job, is not always a smart decision. Paula and Don’s Personal Representative decision should not necessarily be based on choosing the closest in relation, but about ensuring that their wishes are carried out in a timely fashion upon death. Due to the intricacies that go with the job, the most competent person should be chosen.
However, considerable knowledge about financial matters (like Paula and Don’s son) is not necessary. A Personal Representative can always seek assistance from an attorney or accountant familiar with the probate process. A more important consideration is whether your Personal Representative has had financial problems of his or her own. He or she must be able to handle the tasks of estate administration without unduly burdening personal obligations.
If Paula and Don decide to follow the birth order of their children in selecting a Personal Representative, it is worth noting that multiple fiduciaries can be named. Such co-agent relationships might not be the proper choice if you are trying to avoid family disputes. Giving equal authority tends to encourage disagreements. Further, having to act in unison can prove to be cumbersome and slow down the probate process, particularly if Co-Personal Representatives live in different states.
Out-of-state persons can be appointed as Personal Representatives. Especially in the age of e-mail, fax, and overnight delivery, there is no issue with choosing someone who lives out-of-state. Yet generally it is ideal to appoint a health care agent who lives close to you. Reviewing medical records, conversing with physicians, and formulating a true picture of your condition is much easier for someone who lives nearby.
Keeping in mind the discussed considerations, Paula and Don should remember that the role of a Personal Representative is not a simple task that can be accomplished by anyone. Because of the complexity and involvement of the probate process, only intelligent, dependable, and trustworthy people should be named as Personal Representatives. To consult with an attorney on who might be the appropriate Personal Representative for your unique situation, contact Attorney Kristina Vickstrom at Vickstrom Law.
