Who Will Step In for You? Choosing the Right People for Your Estate Plan

When people think about estate planning, they often focus first on who will receive their property.

But an estate plan also asks you to make another set of important decisions:

Who do you trust to act for you?

Depending on your plan, you may need to select someone to manage your finances if you become incapacitated, someone to make health-care decisions when you cannot make them yourself, someone to administer your estate after your death, and someone to manage property held in trust.

Those responsibilities are different. The person who would make an excellent financial agent may not be the person you want making medical decisions. Someone you love deeply may not have the organization or financial judgment necessary to administer an estate or manage a trust.

Before choosing names, it helps to understand the jobs.

Your Financial Agent: Who Can You Trust With Your Money?

A financial power of attorney allows you to designate an agent to exercise the financial authority you give that person under the document.

This person may need to act during one of the most vulnerable periods of your life—when you are unable to manage financial matters yourself.

That makes trust essential, but trust alone may not be enough.

Consider whether the person you are selecting is:

Financially responsible in their own life
Organized and capable of maintaining records
Comfortable handling financial and administrative matters
Willing to put your interests ahead of their own
Capable of following your wishes rather than substituting their preferences for yours
Able to recognize when professional assistance is needed

Depending on the authority granted in your power of attorney, your agent could have substantial access to and control over your financial affairs.

This is not necessarily the role for the person you are closest to. It is the role for someone you trust to do right by you when you may not be able to monitor what they are doing yourself.

Your Health-Care Agent: Who Can Make Difficult Decisions Without Making Them About Themselves?

Your advance medical directive allows you to communicate your wishes regarding health care and designate someone to make health-care decisions for you under the circumstances addressed by the document and Virginia law.

Choosing that person requires a different analysis.

Your health-care agent should understand your wishes and be capable of carrying them out during what could be an extraordinarily emotional time.

Consider whether the person can:

Remain composed enough to receive and understand medical information
Ask questions when something is unclear
Communicate effectively with health-care providers
Advocate for your wishes
Follow the guidance you provided in your advance medical directive
Make difficult decisions without allowing their own fear, grief, or personal preferences to override yours

Someone can love you tremendously and still not be the right person for this job.

For example, if you have clearly expressed that you would not want certain measures taken under particular circumstances, consider whether the person you are appointing could honor that decision even if emotionally they wanted something different.

The question is not simply, “Who loves me enough to make this decision?”

It is also, “Who can carry out my wishes when doing so may be difficult?”

Your Executor: Who Can Navigate the Administration of Your Estate?

Your executor is the person you nominate in your will to administer your estate after your death. If that person ultimately qualifies to serve, the role can involve significantly more than distributing property to the beneficiaries named in your will.

When probate and estate administration are required, the executor may need to navigate a process involving the circuit court clerk’s office, identification and management of estate property, creditors, financial institutions, tax matters, recordkeeping, required filings, distributions, and other administrative responsibilities.

Virginia estate administration can involve numerous procedural and accounting requirements.

That means your executor should ideally be someone who is:

Organized
Dependable
Comfortable managing paperwork and deadlines
Financially responsible
Able to maintain good records
Capable of communicating with beneficiaries and professionals
Able to manage competing demands during an emotionally difficult period
Sophisticated enough to recognize when an attorney, accountant, tax professional, or other adviser should be involved

The oldest child does not automatically need to be the executor.

Neither does the child who lives closest to you.

And naming all of your children together is not necessarily more fair—or more efficient—than choosing the person best equipped for the responsibility.

If your estate plan is expected to involve probate, think carefully about who has the temperament and organizational ability to navigate that process.

Your Trustee: Who Can Manage Property for Someone Else?

Selecting a trustee can require an even broader analysis because the responsibilities of a trustee may continue for years.

A trustee manages property held in trust according to the terms of the trust and applicable law.

What that means in practice depends heavily on the trust you create.

A successor trustee of your revocable living trust may need to step in if you become unable to manage trust property yourself. After your death, a trustee may be responsible for administering the trust, managing investments and other property, maintaining records, communicating with beneficiaries, making distributions, addressing tax and administrative matters, and carrying out the instructions contained in the trust.

Some trusts terminate relatively quickly. Others may continue for many years.

A trustee may therefore need a combination of:

Integrity
Financial judgment
Organization
Attention to detail
Patience
Sound decision-making
Ability to maintain appropriate records
Ability to communicate with beneficiaries
Ability to remain impartial when appropriate
Willingness to follow the terms of the trust
Ability to distinguish the beneficiaries’ interests from their own
Willingness to obtain professional investment, tax, accounting, or legal assistance when necessary

Family dynamics can be particularly important here.

Suppose property will remain in trust for a child for many years. The person you choose may eventually be responsible for making decisions affecting that beneficiary’s access to money.

Consider what that relationship will look like in practice.

Will the beneficiary respect the trustee? Can the trustee say no when the trust requires it? Can the trustee exercise judgment without becoming controlling? Can the trustee make decisions fairly even when family relationships become complicated?

The trustee you select can have a significant effect on how well the plan you created actually functions.

These People Do Not Have to Be the Same Person

Once you understand the responsibilities, an important point becomes clear:

You do not have to choose one person for every job.

One person may be excellent with finances but become overwhelmed in medical situations.

Another may understand your health-care wishes better than anyone else but have no interest in managing money.

A third may have the organization and judgment necessary to administer your estate but may not be the right person to manage a long-term trust.

That is not a problem.

Estate planning gives us an opportunity to match people with responsibilities.

Rather than asking, “Who is the person I trust the most?” consider asking:

“Who do I trust most to perform this particular job?”

Do Not Forget Your Successors

For each role, you should also think beyond your first choice.

The person you name today may be unable or unwilling to serve when the time comes. Someone may become ill, predecease you, move away, experience changes in their own circumstances, or simply decide that they cannot take on the responsibility.

That is why an estate-planning conversation should ordinarily include the question:

Who is next?

Choosing appropriate successor agents, executors, and trustees can prevent your plan from depending entirely on the availability of one person.

Talk to the People You Are Considering

You do not necessarily need to disclose every detail of your estate plan, but someone should generally know that you are considering asking them to take on a significant responsibility.

Ask whether they are willing to serve.

Explain what you are asking them to do.

And, particularly for your health-care agent, have conversations about what matters to you while you are able to have them.

A beautifully drafted advance medical directive cannot substitute for every conversation. Your agent will be better positioned to advocate for you if that person understands not only what the document says, but also what you value and why.

Your Estate Plan Is Only as Practical as the People Who Must Carry It Out

Estate-planning documents matter. So do the people named in them.

Choosing an executor, trustee, financial agent, or health-care agent should not be an exercise in family hierarchy or an attempt to avoid hurting someone’s feelings.

These are jobs.

Each comes with different responsibilities, and each calls for different qualities.

At Basis Law, choosing the people who will carry out your plan is part of the planning process. We discuss what the roles actually require, the people you are considering, possible successors, and how those choices fit within the plan as a whole.

Because a thoughtful estate plan does more than say what should happen.

It considers who will be responsible for making it happen.

Ready to Start Your Estate Plan?

Basis Law PLLC assists Virginia individuals and families with developing estate plans around their circumstances, priorities, assets, and the people they trust.

During the planning process, we can discuss the individuals you are considering for important roles and how those choices fit within the broader design of your estate plan.

Schedule an estate-planning consultation with Basis Law to begin the conversation.

This article is provided for general informational and educational purposes only and does not constitute legal advice. The authority, duties, and responsibilities associated with these roles depend on the applicable documents, circumstances, and law. Reading this article, visiting this website, contacting Basis Law PLLC, or scheduling a consultation does not create an attorney-client relationship. Representation requires a written engagement agreement with Basis Law PLLC.

What to Expect When Creating an Estate Plan With Basis Law

Estate planning is sometimes presented as though the process begins with choosing documents.

Do you need a will? A trust? A power of attorney?

Those documents matter. But at Basis Law, the process begins somewhere else:

What are you trying to accomplish?

An estate plan should reflect your family, your assets, the people you trust, the decisions you want made during your lifetime, and what you want to happen after your death. That requires more than selecting documents from a checklist.

Here is what you can expect when creating an estate plan with Basis Law.

Step 1: Start With a Consultation

Every estate-planning engagement begins with a consultation.

The purpose of the consultation is not simply to decide whether you need a will or a trust. It is an opportunity to discuss your circumstances, goals, concerns, and the decisions you are trying to make.

For example:

Who should receive your property?
Who would you trust to handle financial matters if you could not?
Who should make medical decisions for you?
Are there children or other people you want to protect?
Are there particular assets that require additional consideration?
Do you already have estate-planning documents that may need to be updated?
Are there family circumstances that affect how your plan should be structured?

The consultation also allows us to discuss whether Basis Law is the right fit for your planning needs.

Step 2: Determine What Kind of Plan Makes Sense

Not everyone needs the same estate plan.

Some clients may need only a particular document. Others may benefit from a coordinated estate-planning package.

When a package is appropriate, one of the questions we may consider is whether a will-based or trust-based plan better fits the client’s circumstances and objectives.

That decision should not be made simply because someone has heard that “everyone needs a trust” or because a particular document is popular.

The appropriate structure depends on the person, the property involved, the goals of the plan, and how the different pieces are intended to work together.

During the consultation, we can discuss the available planning options and the type of engagement that may be appropriate.

Step 3: Complete the Estate-Planning Questionnaire

Once you decide to engage Basis Law, the information-gathering process becomes more detailed.

Clients complete an estate-planning questionnaire designed to gather information needed to develop the plan.

The questionnaire may ask about matters such as your family, assets, existing estate-planning documents, intended beneficiaries, and the people you are considering for important roles.

Why gather this information after the consultation?

Because the questionnaire is not intended to replace the conversation.

The initial consultation helps identify your objectives and the general direction of the planning. The questionnaire then allows us to gather the more detailed information needed to move from general goals to an actual plan.

Step 4: Design the Plan Together

After the questionnaire is completed, we meet again.

This is an important part of the process.

By this point, we have more information about your circumstances than we had during the initial consultation. We can review your responses, discuss any questions they raise, and work through the decisions that will shape your documents.

That may include discussing:

Who should serve in important decision-making roles
Who should receive particular property
How property should be distributed
Whether particular family circumstances require additional planning
How different documents should work together
Whether information disclosed through the questionnaire changes the planning approach initially discussed

Estate planning is collaborative. You bring the knowledge of your family, priorities, property, and wishes. Basis Law brings the legal knowledge needed to help translate those decisions into an estate plan.

Sometimes the information gathered during this stage means that the plan initially discussed should be adjusted. That is part of the process.

Step 5: Basis Law Drafts Your Documents

Once the design of the plan is established, Basis Law prepares the first draft of the estate-planning documents included in the engagement.

Depending on the plan, those documents may include a will, trust, power of attorney, advance medical directive, deed, or other documents appropriate for the engagement.

The goal is not simply to produce individual documents.

The documents should work together.

For example, the person authorized to act under a power of attorney may have responsibilities during your lifetime that are different from the person responsible for administering your estate after death. A trust may need to coordinate with the provisions of a will. How property is titled may also affect how the overall plan operates.

That coordination is one reason estate planning should be approached as a plan rather than a collection of forms.

Step 6: Review Your Drafts

You will receive the draft documents for review before execution.

This gives you an opportunity to read what has been prepared and provide feedback directly on the drafts.

You should not feel as though you are expected to understand every provision simply because you have received the documents.

Questions are part of the process.

If something does not reflect your wishes, raises a concern, or simply does not make sense to you, that is something we should address before the documents are signed.

Based on your feedback, appropriate revisions can be made before the documents are finalized.

Step 7: Execute the Estate Plan

Once the documents are final, we move to execution.

Estate-planning documents have legal execution requirements, so signing is more than simply adding a signature to the last page. Basis Law coordinates the execution process to help ensure the documents are executed with the required formalities.

Depending on the documents involved and the client’s circumstances, Basis Law can coordinate in-person or virtual execution.

Before the execution meeting, you will receive instructions explaining what to expect and anything you will need to have available. During the meeting, we will guide you through the signing process so you know what you are signing and how the documents work together.

The goal is to complete the planning process with properly executed documents that reflect the plan we developed together.

Estate Planning Is a Process, Not a Purchase

There is a reason the Basis Law estate-planning process involves more than one conversation.

Your circumstances may look different after we have gathered detailed information than they did during the initial consultation. A decision about one document may affect another. A beneficiary designation, property interest, family circumstance, or choice of decision-maker may raise an issue that deserves additional discussion.

The process gives us room to identify those issues before the documents are signed.

You are not simply purchasing a stack of documents.

You are making decisions about who can act for you, how your property should be handled, who should benefit from what you have built, and how the people you care about should navigate important moments in the future.

Those decisions deserve a thoughtful process.

Ready to Start Your Estate Plan?

Basis Law PLLC assists Virginia individuals and families with estate planning designed around their circumstances, priorities, and goals.

The process begins with a consultation. We will discuss what you are trying to accomplish, identify the planning questions that matter, and consider what type of estate plan may be appropriate for you.

Schedule an estate-planning consultation with Basis Law to begin the conversation.

This article is provided for general informational and educational purposes only and does not constitute legal advice. Estate-planning needs are fact-specific, and the appropriate documents and planning strategies depend on individual circumstances. Reading this article, visiting this website, contacting Basis Law PLLC, or scheduling a consultation does not create an attorney-client relationship. Representation requires a written engagement agreement with Basis Law PLLC.