One of the biggest considerations when putting together your estate plan is who to select as part of your fiduciary lineup. Within an estate plan, there are a handful of roles, and each one serves a different purpose. This post highlights the various fiduciaries you might find within any given estate plan and helpful considerations.
Executor. In Washington State, the person you select to act as executor in your last will and testament is called a personal representative (PR). The PR will be in charge of opening probate and filing the last will and testament with the court. Once probate is open, the PR is in charge of sending required notices, preparing an inventory of the estate, settling debts, and making distributions to beneficiaries. Under RCW 11.36.010, persons convicted of any felonies or crimes of moral turpitude are ineligible to serve. A non Washington resident can serve as PR if they appoint an agent or hire an attorney.
Trustee. Whenever you set up a trust, you must select a trustee to manage and operate the trust. You can often act as Trustee during your lifetime but will likely need to designate a successor trustee. The trustee has a fiduciary duty to manage the trust per the terms in the trust document and also look to the interests of the trust beneficiaries. Since there are many types of trusts, the responsibilities of managing a trust can vary. For example, a trustee administering a revocable living trust of a decedent is able to end their role once distributions have been made to beneficiaries. This can take a few months. Conversely, a trustee managing an irrevocable trust may have to perform as trustee for decades depending on when the trust terms indicate dissolution.
Guardian. If you are the current guardian of a legally incapacitated individual or have minor children, nominating a guardian in your estate plan is critical. Nominating a guardian ensures that those dependent on you will continue to receive care should something happen to you. If you are nominating a guardian who lives out of country, nominating an interim guardian can also be beneficial. A guardian can be responsible for personal and/or financial affairs. You also have the option of selecting one fiduciary to care for the person and a separate fiduciary to manage finances.
Healthcare Agent. In Washington State, a durable power of attorney (DPOA) must conform to the requirements set out in the Uniform Power of Attorney Act. RCW 11.125. Under the Uniform Power of Attorney Act, your healthcare agent can make any medical decision that you could make for yourself. This is unless you exclude certain decision making powers in your DPOA. It's important to note, you are not relinquishing your decision-making power by appointing a healthcare agent. Your healthcare agent has a fiduciary duty to act in your best interest. Further, drafting a healthcare directive is helpful because it informs your healthcare agent of your medical treatment preferences.
Financial Agent. Similar to your healthcare agent, your financial agent is able to make any type of financial decision that you can make for yourself. If there are certain financial decisions you do not want your agent to be able to make, it's crucial to communicate this to your estate planning attorney to ensure your DPOA is drafted per your specifications. Your financial agent can be the same as your healthcare agent but can also be different.
Once you have decided who you would like to include in your estate plan, have a conversation with everyone to determine if they are willing to serve. And remember, you can always select a professional fiduciary as well for any of these roles. There are many reputable fiduciary companies based here in Washington State. Reach out to our team for some recommendations if you need assistance with this.
Disclaimer: The purpose of this post is to provide general information and a general understanding of the law, not to provide specific legal advice. By accessing this blog site you understand that there is no attorney-client relationship between you and Sekhon Law, PLLC. This post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.