In my experience as an Arizona estate planning attorney, I have seen clients choose their Agents, Successor Trustees or Personal Representatives for a variety of reasons — including the wrong ones. It’s only natural to select a beloved friend or family member who genuinely wants and expects to receive such an assignment, if only to avoid hurting their feelings. However, your estate plan (and its execution after your death) should be based on what you want for your beneficiaries, not on what a potential Successor Trustee or Personal Representative might want. The selection of this important individual(s) should be based not on rewarding people or protecting their feelings, but on meaningful criteria that will help to ensure the proper implementation of your final wishes.
As you think about your estate plan Agent, Successor Trustee, and Personal Representative candidates, keep in mind that you can assign different elements of your estate plan to different people. Different individuals will naturally be more or less suited to the demands of specific estate plan assignments. The same person ideally equipped to serve as a successor trustee, for example, might not make a good guardian for minor children. On the flip side, your friend or family member who is great with kids might have problems managing money. Just as you would hire the right employees to fill the right positions at your company, you should make sure that you have placed the right people in the right estate plan assignments.
Beyond any specific skills and knowledge that you want your Guardian, Successor Trustee, Personal Representative, or Power of Attorney Agent to possess, any individual you choose for any assignment should also exhibit some basic positive traits. The most important trait of which will probably be trustworthiness. You must feel confident that each individual you select will work hard to uphold your wishes and intentions. These individuals should also demonstrate keen intelligence, strong communication skills, emotional maturity, mental stability, and organizational experience. Last but not least, you want an individual who can keep a cool head under stressful circumstances.
More mundane practical considerations may also come into play when choosing an individual who will have responsibilities in your estate plan. For instance, if you choose someone who lives on the other side of the world, that person may encounter serious availability and accessibility issues that make them less effective at administering your estate.
Don’t assume that you’ve finished naming your estate plan representatives once you have assigned one person to each spot. Your ideal agents may become ill, die, or become otherwise incapacitated, rendering them unable to serve the needs of your estate. For this reason, you should establish a line of succession for the administration of each of your estate plan instruments, selecting more than one competent individual who can step in as needed when your first choice must exit the picture.
Remember that you always have the option of changing any of these assignments. If you develop serious second thoughts about your choices for any reason, you should amend and revise your estate plan to name different representatives. Just make certain that you take action right away instead of putting the decision off. No one can predict the future and time may well run out for you before you’ve settled these critical details.
When you appoint the Personal Representative and Successor Trustee, you can also set the stage for family disruptions and conflicts unless you make this choice with care. While you have every right to choose whomever you wish, choosing the youngest child or a stepchild may create a furor among the other children, which in turn may lead to lengthy, complex legal battles. If you see this as a real possibility, think about naming an individual outside of your family in those roles.
© 2020 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved
This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.