Well and it’s not necessarily even after you’re gone, it could be that you become incapacitated. And we have different people who can wear different hats. I’ve talked about a durable power of attorney; you have what’s called an agent in the power of attorney. And you can have multiple agents.
My personal suggestion is that if you’re going to name multiple agents, you name them in succession and not side by side. Sometimes it can be difficult because if you have two people and someone looking at the power of attorney sees those two people and only one of you can be present, they won’t let you move on because they’ll say, “Well this other person obviously has to agree to this.” So I think it’s better to have people one after another. So you have an agent under your power of attorney, you have an agent under your healthcare surrogate, and also under your living will.
If you have a will, then you have what’s called a personal representative. Now that person doesn’t spring into power until after your lifetime. And only if the will is actually going to be submitted to the court to be probated. And it doesn’t always have to be done.
If you are in a marriage and you are the first spouse to die, very often the assets are already owned jointly and so your surviving spouse really doesn’t have to do anything to transfer property, might want to do some things to show that the surviving spouse is now the sole owner, but we might not ever need a personal representative.
In respect to a trust, you have a trustee. Now initially, you are the trustee. You are everything. You’re the grantor (or the creator) of the trust. You’re the beneficiary (the person who’s enjoying it), and the person who’s in control (which is the trustee). But if you become incapacitated (or certainly after your lifetime), you can then have successor trustees. Again, I suggest that you have people named in order.
In certain instances it’s a great idea to have a corporate trustee… In my family, for example, we’re a blended family. I have 7 brothers and 3 sisters… My mom had 5, my dad had 3, I’m from their marriage, and then we adopted 2. So it’s yours, mine, ours, and somebody else’s. Well in a mix like that, it might actually be a good idea to have a corporate trustee. So that there is somebody at a bank or other institution who when the trust needs to be administered, they’re going to do it on a very impartial basis. You don’t get somebody who is an individual and all the kids are saying, “Well you were always mom’s favorite and you know…” You just don’t want to go there sometimes. So you can have a professional be the trustee. The downside of that, of course, is that there are going to be fees that are charged that may not be to the liking of the person who is setting up the trust.
…[I]t’s not necessarily even after you’re gone…
But if you have responsible people within the family, then you can set up a surviving child, or a brother, or a sister, or even a parent if you’re young enough that your parents would still be able to do that. But you get to choose who that’s going to be. No court involvement there. No delays that we typically see as we’re starting to get into an estate administration.
You have to pick them carefully. And you do want to pick somebody who understands that they have what are called “fiduciary responsibilities.” A fiduciary is simply somebody who’s holding assets on behalf of somebody else. If they don’t meet up to those responsibilities, they can get into trouble. They have to do what they’re supposed to do and they have to do it in a timely manner.
– David Pilcher is an experienced estate planning and probate attorney with Bogin, Munns & Munns, a full service law firm with offices in Orlando, Clermont, Kissimmee, St. Cloud, The Villages, Orange City, Titusville, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Pilcher welcomes questions and comments regarding the above and can be reached at [email protected]
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