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Choosing Trustees, Executors, and Heath Care Surrogates

By Howard C. Stross
October 28, 2013

When you create your estate plan, you will choose people to serve in various roles. Your successor trustee will manage and ultimately distribute the trust assets. If there is a probate estate, your executor (called a personal representative in Florida) will be in charge of the probate estate. Your health care surrogate will make medical decisions for you if you are unable to do so. These roles are not just honorariums. The people you choose will have to do work.

Many people simply want to name their children in age order. However, that may not result in the most appropriate successor trustee. Some children may be better at making financial decisions and some children may be better at making medical decisions. For example, your youngest daughter may the best person to be your health care surrogate because she is a nurse. Below are various issues to consider when choosing these important individuals.

Successor Trustees, Executors or Personal Representatives

Typically, when you have a trust based estate plan, you are the initial trustee of your trust and you manage your trust assets. If you become incapacitated during your lifetime, the successor trustee will manage the trust assets for you. Ultimately, when you pass away, the successor trustee will be in charge of the trust administration.

The successor trustee should be organized, able to recognize when they need professional help, and able to meet deadlines. It is okay if they are not experienced in legal, investing or accounting matters as long as they are willing to delegate. An experienced trust attorney can guide a successor trustee through the trust administration process. The successor trustee may also hire an investment advisor to manage the trust assets and a CPA to prepare tax returns. Distance is not an issue. A trustee does not have to be a resident of Florida.

Similar to the successor trustee who is in charge of the settlement of the trust assets, your personal representative (often called an executor in other states) is named in your last will and testament to settle the probate estate. Assets that were in the decedent’s individual name, and did not have a beneficiary designation, will be part of the probate estate and need to go through the probate process. Click here to read a previous article which discussed the Florida Probate Process in depth.

Like the successor trustee, the personal representative must also be organized, able to recognize when they need professional help, and able to meet deadlines. After they determine how assets are titled, they should consult a Florida probate attorney. They should not be a procrastinator as there are various deadlines that need to be met in order to close the probate estate in a timely manner. Florida probate laws do have some requirements for personal representatives. To qualify, they must be a Florida resident or a relative of the decedent. Therefore, you cannot choose an out-of-state friend as your personal representative. You may choose an out-of-state child, niece, nephew, etc. We have worked with many out-of-state personal representatives but they must be related to the decedent.

Heath Care Surrogate to Make Medical Decisions

A healthcare power of attorney names your health care surrogate (also called a healthcare proxy). This person will make healthcare decisions for you if you are unable to do so.

It is important that this person is not a procrastinator. When a decision about your medical care needs to be made, they will need to consult with the physician and make a decision. They cannot be so distraught that they are prevented from making a decision. The healthcare surrogate needs to think rationally when faced with difficult decisions. Many clients choose a local relative or friend who can easily come to the hospital in the case of an emergency. Some clients prefer to choose someone with a medical background so the health care surrogate will be able to understand the medical issues involved.

Consider your health care surrogate’s views on end-of-life issues. They may believe that everyone should receive full treatment. However, your living will may state that you do not want life prolonging procedures. You could be placing them in a difficult situation where following your directions is contrary to their personal beliefs.

It is unwise to surprise someone with this role. You should talk to this person ahead of time. Tell your health care surrogate your wishes regarding organ donation and end-of-life care so they will know when the time comes.

Review Who You Have Chosen

As we go through life, things change. Maybe 10 years ago you named your brother as your successor trustee. However, he may not be the best person for the job now because he is having health problems. It is important to periodically review your estate plan and to review the people you have named as trustee, personal representative, and heath care surrogate. Stross Law Firm offers an estate planning maintenance program, Peace Of Mind A Life Plan for Everyone, so you can make sure that your trustees, executors, and heath care surrogates are kept up-to-date.

This article is not intended to provide legal advice or encourage anyone to do estate planning without the guidance of an estate planning attorney. Call us at 813-852-6500 to schedule a free 30-minute consultationwith an estate planning lawyer.

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