Everyone should have an estate plan with named estate plan fiduciaries. If you don’t, choices that you can and should make for yourself and your family can wind up being made by others either because of the rules of intestacy or through probate court proceedings.
When creating an estate plan, there is a lot to consider, particularly when naming estate plan fiduciaries. But once the initial process is completed, you will have created a firm foundation upon which your future planning will be based.
Estate Plan Documents & Selecting Estate Plan Fiduciaries
The basic estate plan for a married couple with children generally includes no fewer than four documents for each spouse and each document call for a person to carry out the required tasks. The people who are chosen to fulfill tasks in your estate planning documents are referred to as fiduciaries. It is possible, and often the case, that the same person will be assigned multiple tasks, although it is not required.
Here is a basic roadmap for the choices of fiduciaries you will address in the estate planning process.
Power of Attorney
The first document to consider is a power of attorney, which enables your chosen fiduciary to handle your financial affairs if you are not able to do so. Often it is appropriate to have a spouse assume this role. But that is not the end of this story. If there were a common disaster, then the spouse may not be available, or, in other cases, the spouse may not be the right person.
If not the spouse, you should choose a trustworthy person who knows your situation, needs, and desires. Sometimes an adult child is a good choice. Your estate planning attorney will help you explore your options and make a choice that works for you.
Health Care Proxy
The second document to consider is the health care proxy. The document Sassoon Cymrot Law utilizes embodies both the health care special power of attorney and the directive as to when to terminate life-sustaining procedures. As with all Massachusetts health care proxies, while you are able to speak for yourself, you make the decisions. The person you choose as your health care agent will only step in when you can’t speak for yourself.
As with power of attorney, it is often assumed that your spouse is the right choice for this role. The tricky part may arise if your spouse is not available or is not the right person. In these instances, it might be a child or a sibling. Your estate planning attorney will work with you to help you make that decision, bearing in mind any specific desires and religious concerns that may be important to you.
In making your Will, people often need two different fiduciaries. The Personal Representative (formerly called the “executor”) has the responsibility of dealing with the probate assets, seeing to the distribution of property to named beneficiaries, taking care of the filing of income tax returns and, if needed, the estate tax returns.
Your attorney’s probate team can facilitate accomplishing those tasks. The choice of Personal Representative should focus on identifying a person who can handle these details. A surviving spouse, an adult child, or a sibling is the most common choice, and you should consider naming both a primary and successor Personal Representative.
Although not comfortable to consider, a thorough estate plan will also contain provisions naming a Guardian for a minor child. These persons have a special role and should be equipped to provide the security and comfort that the child will require. In choosing the Guardian, consideration should be given to location because of the additional trauma of having to move an orphaned child.
The Guardian should also be equipped to deal with your financial advisors and trustees to see to the child’s financial needs, education, and support. If the Guardian you choose should not have direct control over the minor’s financial resources, the Guardian and Trustee (discussed below) should not be the same person.
Finally, a complete estate plan will usually include a revocable trust. This vehicle will be designed to effectuate your tax planning and provide for the long-term needs of the surviving spouse, children, and perhaps more remote heirs.
The trustee for your revocable trust should be a person (or sometimes an entity like a trust company or trust department) who is equipped to handle a long-term commitment and with the acumen to deal with financial assets and financial advisors. To assure that family knowledge and concern for the particular family needs are addressed, it is common to include the spouse or other close relative to serve as a “family trustee” in addition to the “independent” or “successor” trustee. Your estate planning team can assist you in choosing appropriate trustees. The trustee will work closely with your family and with the Guardian of your minor children.
Contact Sassoon Cymrot LawEach of the estate plan documents above is revocable, and the plans we construct with you are designed to change and grow as your life progresses and circumstances change. At Sassoon Cymrot Law, we have a team of seasoned estate planning lawyers who are prepared to help you understand the choices presented to you when choosing estate plan fiduciaries and to help you articulate your desires. If you have any questions, please get in touch with our Estate Planning lawyers.