A comprehensive estate plan consists of several documents designed to accomplish three important things. First, they lay out your wishes for the handling of your money and property during life and at death. Second, they explain your medical wishes if you are no longer able to make them yourself or communicate them to others. Third, they list the trusted individuals you want to carry out your financial and medical wishes. These people are referred to throughout your estate plan as a fiduciary. For some people, choosing trusted fiduciaries is easy; for others, it may be more difficult due to tense family circumstances, geography, or the lack of living family members. While most advisors and attorneys counsel clients to choose family members or close friends, this may not always be an option. But have no fear. You can consider hiring a fiduciary if you do not have a family member or close friend to appoint to one of these important positions.
Below are some of the roles a fiduciary might need to fill, options for whom to consider if you do not have a family member or friend who can fill the role, and questions to ask your prospective helper.
Financial Decision Makers:
Independent Executor or personal representative. This trusted individual, appointed in your last will and testament, is responsible for collecting all of your accounts and property, paying your outstanding debts, and distributing your money and property to your named beneficiaries or to the trustee of your trust. This person’s task is to wind up your affairs at your death, which can be time-consuming.
Successor trustee of a revocable living trust. Serving after you, this trusted person or entity is charged with managing, investing, and distributing the money and property from your revocable living trust to you during your lifetime and to your chosen beneficiaries after your death.
Agent under a financial power of attorney. Your agent is an individual you choose to carry out financial transactions on your behalf (such as signing a check or opening a bank account). In Texas, you can choose to make the Financial Power of Attorney document a more general document, and choose when the agent may act on your behalf (such as at the time of signing or on a determination of your incapacity).
When it comes to selecting an agent to handle your financial transactions—whether at your death or during a time when you are unable to manage them yourself—there are several options available to you beyond family and friends.
- Ask if the bank or financial institution where you already have an account has a trust department. Because they are already familiar with managing your accounts, they could be a good fit to step in and assist you if needed.
- Interview a private trust company that specializes in managing money on behalf of individuals. Because their job is to manage money and make distributions, they are well-equipped to handle the administrative tasks associated with being a financial decision maker.
- Consider asking your certified public accountant or financial advisor if they are willing to act on your behalf or if they know of someone who can..
Hiring Fiduciary Candidate Interview Questions:
- How do you charge? You want to know how much the service will cost in order to ensure that there will be money left over to give to your beneficiaries.
- Do you keep records of the transactions you conduct on my behalf? Who has access to these records? An individual who manages another person’s finances is considered a fiduciary, which means that they owe a duty to that person to act in their best interest according to the law. A certain level of transparency can put you at ease because you will know that even if you cannot manage your financial affairs, the right people will get the information they need and the wrong people will not.
- How long does it take to administer an estate of my size? Because time equals money in a lot of instances, you want to ensure that the professional you hire will wind up your affairs as expediently as possible, without cutting corners.
- How often do you communicate with the beneficiaries and my family members? It is important that everyone is on the same page and that the lines of communication remain open, even at your death. This can help avoid potential conflicts after you have passed away.
- Do you require that any special language be included in the estate planning documents or any additional paperwork be completed? Your estate planning attorney will want to ensure that the documents that are being prepared will function properly when the professional financial decision maker needs to step in.
- What has been your best experience administering an estate or trust? If you are meeting with the individual who will be in charge of handling your affairs, this question can help you get a sense of what they value and how they do their job. This will also help determine if you would be an ideal client for the professional.
- What has been your worst experience administering an estate or trust? Take this opportunity to learn from others’ mistakes. Preparing ahead of time for smooth management and administration means that your financial needs—and those of your beneficiaries at your death—can be better met in a timely fashion.
Personal Care Decision Makers:
These may be the most difficult roles to fill because you are asking someone to look after your safety and welfare, as well as that of your beloved pet. Accordingly, each has unique considerations.
Agent under a medical power of attorney. This trusted individual is in charge of making or communicating your medical wishes in the event you are no longer able to make or communicate them yourself. In addition to naming someone, make sure you have completed an advance directive (often referred to as a living will) to make your medical wishes known ahead of time. It may also be helpful to draft a letter of instruction to your agent explaining, in your own words, the types of medical decisions you would and would not want made on your behalf. Such instructions can be extremely helpful to guide your agent when difficult decisions must be made.
If you have no trusted family member to be your medical agent, your decision may be more difficult. Because of the sensitive nature of making medical decisions for another person, consider naming a close friend or trusted professional. It’s worth noting that Texas won’t allow you to name your doctor/health care provided to act as your agent while they are also acting as your medical provider. The law prohibits them from being both (your doctor and your agent) at the same time.
Caretaker for your pet. You will need to select someone to take possession of and continue caring for your beloved pet if you are no longer able to care for it due to your incapacity or death. Although the law may treat these members of your family as mere personal property, if you want to ensure that your pet is taken care of, you need to thoughtfully consider who will be able to care for it.
If there is not a suitable owner among your family or friends, there are many organizations that may be willing to either take your pet or help your loved ones find a suitable forever home for it.
When interviewing potential candidates for your personal care decision makers, consider asking the following questions. Some of these questions are the same as those offered above for choosing financial care decision makers, but you will want to dig deeper when discussing them with these candidates because you are entrusting these individuals with caring for you and your pet.
- Do you charge for your services? Some organizations may charge while others may not. It is important that you know ahead of time so money can be made available to cover these expenses.
- When and how should you be contacted if your assistance is needed? Because you do not know when you will need their assistance, and you will likely not be the one contacting them, it is important that you have an easy way for someone else to contact them in an emergency situation.
- Is there additional information or paperwork needed to carry out your role? You will want to make sure that the person or organization has all of the necessary information prior to an emergency situation.
Not knowing whom to appoint to these crucial roles can easily derail your estate planning process. Moreover, the media has not cast professional fiduciaries in the best light over the past few years. However, do not let this initial uncertainty prevent you from taking the necessary next steps to protect yourself and those you care about. Call us today so we can discuss your options to ensure that you have trusted decision makers in place to help you when needed.
Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us. We look forward to working with you.