Many of the topics I have covered on my blog have to do with what happens if someone dies without a plan, or how not having a plan can be problematic. I spend a lot of time encouraging people to set up a plan, so that they can have their affairs in order. This blog post will be devoted to what happens when you have a plan in place. The timeline for someone who has an estate plan in place is very simple, outlined here:
First, We talk about what needs to happen, and we write down what is supposed to happen, using the correct documents.
Second, Someone dies.
Third, Your survivors follow the directions you set up in the estate plan.
That is about as simple as it gets. Of course, the simple description doesn’t capture everything that is encompassed in setting up and carrying out an estate plan, but the simple timeline above does accurately depict what happens when you die with an estate plan. Hence, the topic of this blog post.
What Goes Into Setting Up an Estate Plan?
You will need to discuss setting up a will, and whether a trust is something necessary, or appropriate in your case. You will want to let the estate planning attorney who will act as your agent under a financial power of attorney, or a medical power of attorney. You will want to choose beneficiaries, or recipients of your assets when you pass away. You also need to pick someone to carry out your wishes, a personal representative for a will, or a successor trustee if you set up a trust.
This topic is covered in more detail in many of my other blog posts. Setting up an estate plan is where you should work closely with an estate planning attorney. You want to help the estate planning attorney understand your situation, and your estate planning attorney should seek to understand what your needs are. I do this by meeting with clients for an initial conversation of about an hour. During that time, I ask a lot of questions, and gather information. From that discussion, I can help you formulate a plan that reflects what you want and need.
Why is the Person I Pick to be in Charge so Important?
When you pick a personal representative, or a successor trustee, you are picking someone who will carry out your wishes, as stated in your estate plan – usually your will or trust. The persona named as a personal representative or successor trustee is responsible for carrying out your wishes and desires, as expressed in your estate plan.
Authority Under a Power of Attorney Ends at Death
Sometimes people will tell me they are the agent under a power of attorney, so they will be responsible for carrying out the wishes of the deceased. Because a power of attorney ends at death, this is not possible. The agent’s authority under a power of attorney ends at death, so a personal representative, or successor trustee is the person authorized to carry out instructions after death.
The Personal Representative, or Successor Trustee, is Responsible
Many people mistakenly believe that the attorney who drafted an estate plan is responsible for carrying out the terms of an estate plan. The attorney who drafted an estate plan may be able to help give guidance and direction, but is not automatically responsible for carrying out the directions contained in an estate plan. Instead, that responsibility lies with the personal representative, or successor trustee. A personal representative, or successor trustee, may certainly hire an attorney to handle carrying out the plan.
A probate attorney, or trust administration attorney, may be hired to carry out the directions contained in a will or trust, but the attorney who drafted an estate plan is not legally obligated to do so, unless the drafting attorney is hired to do so. You want to pick someone to serve as your personal representative who can follow your directions and carry them out after your death. Or, you will need to hire an attorney to handle the probate administration. Probate administration does not happen to be part of my practice, but I am happy to recommend my friends who handle such matters.
Making Your Estate Plan Clear Only Helps the Process
At the risk of sounding completely obvious, the more clear you can be in your estate plan about what you want to have happen with your assets, the easier it will be for your personal representative, or your successor trustee, to carry out your wishes and follow your plan. You want to give specific directions on what will happen with your assets – who should receive the assets, and in what quantity. If you have conditions on distributions, or reasons that assets may be delayed in being distributed, you want to be clear on what should happen. That way, your personal representative, or successor trustee, can simply carry out your instructions.
Put Your Plan in Place and Be Confident You are Prepared
I cannot guarantee that everyone will like how you decide to distribute your assets, but if you are clear in what you want to have happen, then your desires are much easier to bring to pass. Be clear in what you want, write it in the correct estate planning documents, and rest easy that your estate plan will be smooth and easy on your loved ones after you are gone.