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.
Informational notice: This resource is provided for general informational purposes only and is not legal or tax advice. Reading this article, contacting Basis Law PLLC, or submitting information does not create an attorney-client relationship. Legal outcomes and procedural options depend on the specific facts and applicable law.