Downs Law Firm, P.C.
Downs Law Firm, P.C.
Selecting an Executor (or Trustee)? If you can’t pay your bills due to injury or death, selecting an Executor (or Trustee), often proves to dictate how well the plan will work. Who do you pick as the quarterback? In a Will, Trust, or Power of Attorney, you must select a money managing chain of command. Who are you going to hand the checkbook to? Although the role has different names for different documents, the considerations are the same. They all serve as fiduciary, who you trust to stand in your shoes and act for you when you can’t. In a Power of Attorney, this fiduciary role is called an “Attorney-in-Fact”; for a Last Will and Testament, this is an executor, and for a trust, it’s the trustee. Selecting fiduciaries becomes more accessible when the role is understood. A fiduciary is someone empowered to control different assets for another person, usually the intended beneficiary of the assets. The fiduciary must put the fiduciary’s interests aside and act in the beneficiary’s best interest, even when doing so is contrary to the fiduciary’s interests. Who Can Be a Fiduciary? A fiduciary can be anyone with legal capacity, including family members. Suppose you are not comfortable with a relative controlling your assets as a fiduciary. In that case, you may prefer to have a non-family member or even a financial institution serve in that role. For example, an estate planning attorney is a fiduciary by the nature of her legal and ethical obligation to act in the best interest of her clients. Still, an attorney also may serve as a fiduciary for an estate, a person, or a trust. The fiduciary appointed to administer a trust and manage its assets is a trustee. If the trust is created under your last will and testament to administer the inheritance for your beneficiaries, then such trust is known as a “testamentary” trust. On the other hand, if the trust is created under your revocable trust established during your lifetime, then the inheritance trusts come into play upon your death. Both inheritance trusts are irrevocable; the difference is that the “testamentary” trust requires probate, and the other does not. The fiduciary nominated by you to carry out the probate and administration of your Last Will and Testament is an executor (or personal representative). The executor must first receive permission from the court to carry out the executor’s responsibilities. Their authority to act comes into effect only after the last will has been presented for probate and the court appointments that person to serve. How Do I Select the Best Candidate to Be My Fiduciary? Ordinarily, the person doesn’t need to be a financial expert: pick someone honest and reliable. They can hire experts, but there is no substitute for character. Selecting a fiduciary to take care of your financial and legal decisions at incapacity or death can be more complicated than deciding who you want to inherit your estate. If your family includes multiple marriages or has
Some people think that, because their assets are jointly owned with a spouse or are in a trust, they do not need a Power of Attorney, or that if they become incapacitated, their spouse automatically has the authority to make medical decisions on their behalf.
On March 30 Governor Larry Hogan signed an emergency notary Order allowing documents in Maryland to be signed remotely. This was an emergency order meant the help keep notaries and those people signing documents critical enough to require a notary. It’s unfortunately useless as issued.
“Don’t panic” has been a common refrain from government leaders, public health professionals, and across social media from well-meaning people trying to keep everyone calm during the coronavirus pandemic.
I have appointed my oldest son as agent using a durable power of attorney form I got on the Internet. I want to be sure he understands his responsibilities if he has to manage my money and pay my bills when I become ill.
It was reported on the news recently that some of Aretha Franklin’s family members have found what they believe to be her will. It was handwritten, stained, and crumpled up in a couch. The courts may or may not choose to honor it, depending on whether or not they are able to verify its authenticity.
Some of the options are less intrusive than a guardianship or a conservatorship. Sometimes guardianships and conservatorships are necessary when some members of a family believe a loved one is becoming mentally or physically incapacitated. However, there are other options, according to On Common Ground News in the article “Alternatives to guardianship and conservatorship.” What is the difference between the two? These are legal proceedings that vary in name from State to State. In Maryland, these proceedings are guardianships and take two forms: Guardian of the person and guardian of the property. A Guardian of the person decides on living situation and most medical care: Guardian of the property handles the property and lets the appointed person their ward’s finances and assets, buy and sell businesses and enter into commercial transactions. Either process will involve a court proceeding, ordinarily with an attorney representing the family and a separate attorney representing the incapacitated person. Guardian of the person can sometimes be avoided by relying on the Maryland Health Care Surrogate law, that basically allows next of kin to make medical decisions for someone who does not sign a living will or health care power of attorney. This can be a good alternative to Court if the family is united in their decision making. It doesn’t work well if they are not. Alternative options to Guardian of the property include a Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf. A second alternative is the creation and funding of a revocable living trust, where you can appoint a chain of command for the management of assets in the Trust. Many of our clients name a trustee child or other individual to be a Co-Trustee, to be in the wings to manage assets at disability. An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances. Reference: On Common Ground News (Nov. 29, 2018) “Alternatives to guardianship and conservatorship”