Dear Readers:

Many of you have not yet created your estate plan. Many others already have estate plans that haven’t been looked at for a long time. When considering your estate plan, the most important decisions to make are who should be your successor trustees, executors, attorneys-in-fact and health care agents.

There is a tendency for parents to default to the first-born male child, you know, the new “patriarch” of the family when you’re gone. This can be a horrible mistake, because your eldest son may not be a good fit for the job.

Rule #1 about picking trustees and executors is that if they aren’t good with their own money, they won’t be any good with yours. We’re not saying they should be well off. It’s qualification enough to live within one’s means.

Rule #2: A trustee of a Trust, an executor of a Will, or an or attorneys-in-fact under a Durable Power of Attorney should be honest, moderately organized and diplomatic, the latter qualification being the most important. An important goal in a trust administration or probate is to get the beneficiaries to cooperate and agree to waive an accounting. This saves everyone time and money. If your trustee is has an arrogant and commanding attitude, and isn’t so good at letting the beneficiaries know what’s going on, he or she will create a lack of trust. It may become so bad that your other children hire lawyers because they think they are being taken advantage of.

It’s also important to recognize that sometimes you cannot avoid problems within your family when you are gone. It may be a good idea to name a bank or trust company as trustee, even though there will be added expense. Another alternative is to name a Professional Fiduciary as trustee or executor. Professional Fiduciaries are regulated by the state and they won’t be sloppy about it. Administering trusts and estates is that they do as a career. Naming a friend as trustee does not always work out so well. They have a tendency to think it is simpler than it is and cut corners when it’s not appropriate.

Naming health care agents on your Advance Health Care Directive is even more important, as it is a matter of your life and death. To put it bluntly, your health care agent is likely to be called on to tell the doctors to let you live or die. If your health care agent disagrees with your decisions regarding life sustaining treatment, he or she can override your stated wishes, even if you have instructed your physicians to not resuscitate you. They can do this is because you’ll be incapacitated at the time and your doctors don’t want to get sued.

One more point about advance health care directives is that if you know what you want done with your remains, add that to the document. Doing so could prevent or at least put an end to family arguments over how best to honor your memory after you are gone.

Len & Rosie

Tillem McNichol & Brown