Agents, Representatives, and Surrogates: Oh My! Understanding Your Estate Plan Roles

When you create your estate plan, not only do you decide what happens to your belongings and property after you die, you also choose people in the roles of your estate plan to do things for you when you cannot. Some of these people act after your death, but some also have key roles during your lifetime if you lose capacity to make your own decisions. Let’s look at a few of these roles you’ll need to assign.

Personal Representative

Your personal representative (other states use the term executor or executrix) handles your estate after you pass away. In Florida, if your estate must be probated, your personal representative, with the assistance of an attorney, is responsible for that probate. This may include closing bank accounts, transferring titles, and distributing your personal property. This can be a lot of work and often requires organization and attention to detail.

Trustee

If your plan includes a trust, whether a living trust or one that is created at your death, the trustee is responsible for following the terms that you put into that trust. This usually means holding and managing assets and distributing those assets based on what your trust says to do. If you have a living trust and become incapacitated, the successor trustee, that is, the next in line, takes over managing your trust. The trustee in charge after your death may be in that position for many years if the trust takes care of your children. Depending on your estate, you might use a professional corporation in this role, or it might be a family member or friend. Each situation is different.

Agent under Your Durable Power of Attorney

Your agent under your durable power of attorney typically handles the financial and business side of your life if you are incapacitated. This can be a broad power, such as handling your banking, or it could be for only a limited purpose or time, such as to sell a particular piece of property. No matter what power is granted, this power always ends on your death. Thus, it is essential to also name the above roles too.

Health Care Surrogate

Your health care surrogate is the person you authorize to make medical decisions when you cannot. This person can also withdraw, withhold, or request life-sustaining or life-saving treatments (following your advanced directives if you have them in place). Florida law changed in the past few years, and now this person may have immediate power. Although you have final say if you have capacity, granting immediate power can help your doctors work with your surrogate throughout your health care, not only after you lose capacity.

Guardian for Minor Children

None of us want to think of dying while our children are young, but if that does happen, do you know whom you would want raising them? And would that same person be in charge of any inheritance you left to your children? It does not have to be the same person. Even when two parents are present in children’s lives, tragic accidents occur. By naming the guardians you want in advance, you can save a lot of fighting among your relatives later. Although your choice is not guaranteed to be selected by the court, your having made the choice is one of the biggest considerations a court will use in appointing a guardian for your children.

Working with An Attorney

Most of these estate plan roles have a fiduciary responsibility to you or your heirs. This means the role is a position of trust with legal and ethical duties. Thus, choosing the right people for these roles is one of the biggest parts of making your estate plan.

Clients don’t always know when they start planning whom they will choose. But that’s another reason to do your planning with an attorney. It’s through those conversations that you and your attorney figure out who will likely be the best fit for your particular needs (and who would be a good back-up person). So even if you don’t know whom you would pick today, don’t let that make you put off starting your estate plan. You can work through that together with your attorney.

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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