Roles in the Wills Process: Who’s the Trustee and/or Executor?
In estate planning, the wills process tends to have several roles responsibilities that are critically important. It is important to understand the difference between an executor and trustee. Once you understand what the key roles and responsibilities are, you can select the right people for each position. Selecting who would serve in these critical roles removes the stress of what could happen in the event of your inability to make medical decisions or your passing. It alleviates loved one's worry by knowing there is an established plan for "what if." It is crucial that you have a conversation with each person who is assigned a role in your Last Will and Testament or Advance Directive for Health Care. Discuss your wishes and what each person's role will entail to ensure that they are prepared and willing to serve in that role. Lastly, it is important to note that the individual selected for these positions may not be able to serve or choose not to serve, so we highly recommend selecting at least one back-up option for each role.
Roles & Responsibilities in the Wills Process
Executor/Executrix
This is the individual who will probate your estate and carry out the wishes contained in your Will. Since this role includes quite personal or intimate responsibilities, often times people select someone who they are close to such as a family friend or relative. For example, your executor will be responsible for gathering your assets and ensuring they are distributed to your loved ones according to your Will. This title also involves handling the decedent's finances, so selecting someone with a strong understanding of finances would be beneficial. Those responsibilities include notifying any creditors and making sure that all outstanding balances are paid from the estate. However, there is also the option to select a corporate entity to serve as your executor. Choosing this option would remove the personal ties and place a third party neutral in the position, but often times this avenue requires compensation for the executor while a family member or friend may choose to serve without compensation. Overall, you should select someone who you would feel comfortable carrying out the directions left in your Last Will and Testament.
Trustee
A trustee is the individual who oversees the assets you leave in a trust to your beneficiaries. This person should be reliable and, as the title suggests, trustworthy as they will have vast responsibilities over the administration, management, and distribution of trust assets. A trustee should be financially responsible and at least familiar with basic financial concepts. The job of a trustee can be difficult in that he/she will have to make decisions on how the money will be spent. This includes having to tell the beneficiary "No" at times, which should be taken into consideration when selecting a trustee. If you select a friend or relative, make sure that person is willing and able to make the appropriate financial decisions whether that aligns with the beneficiary's desires or not. While some people prefer a trusted friend or relative to serve this role, you could also select an accountant, bank, or attorney as your trustee. Sometimes these third parties are preferred in this role as they do not have the same emotional attachment to the beneficiary, perhaps making the decisions feel less personal.
Guardian
A guardian is the individual who you select to take care of your minor children upon your passing. This person assumes the role of your children's legal parent. When selecting a guardian, you should consider who would best care for your children. Some common considerations include where the potential guardian lives, would your child have to move? Is this person's lifestyle conducive to caring for a child? Is this person financially stable with steady employment? Does this person have other children or any experience raising children? Would this person raise your children as you would? How old is this person? Is this person in good health? This role is almost always served by family members or close family friends, often times who have strong relationships with the children. It is also important to note that godparents are not automatically acknowledged as legal parents. You would still have to select the godparent as your children's guardian if you would like the godparent to care for your children in the event of your passing.
Health Care Agent
Your health care agent is the individual who has the ability to make medical decisions for you in the event that you are unable to make them for yourself. These decisions can range from minor health care choices to life saving measures. You also have the ability to place limitations on your health care agent. For example, you can specify that your health care agent is not allowed to consent to a blood transfusion, an amputation, or any other limitation you wish to include. Often times people select their spouse, adult children, siblings, or other close relative or friend. When making this decision it is important to choose someone who will be able to make difficult decisions that have the potential to be life altering or in some cases, end of life decisions.