Whether your estate plan includes simply a will or a living trust as well, it is critically important to select someone to be responsible for the disposition of your estate. An executor or personal representative depending on the jurisdiction is responsible for disposition of assets under a will. A trustee is responsible for disposition of assets according to the terms of your trust. An individual such as a relative, a close friend or a professional advisor such as an attorney or accountant can serve in these capacities. It is often the case that a person will name both an individual and an institution to serve together.
A common question from clients is, “What are the advantages of a professional executor vs. an individual executor?" Typically a professional executor or personal representative is a specialist in handling estate and trust administration. They will certainly be familiar with local laws and procedures regarding administration of an estate. In addition, a professional executor or personal representative will not have emotional bias regarding the estate and will be more impartial and more capable of acting independently in accordance with the decedent’s instructions. In contrast, the advantages of an individual executor or personal representative are based on their personal relationship with the decedent. An individual executor or personal representative is more likely to be personally familiar with the family and family dynamics as well as potentially being more affordable that their professional counterparts. Whatever, type of personal representative you chose, it is important to consider the strengths of both options. Often people will select a form of co-personal representatives or co-trustee type arrangement. This type of structure can often benefit an estate by combined expertise and strengths of the individual and institution.
Another common question I hear is, “What does the executor or personal representative do." The answer, he or she serves after your death and has several major responsibilities including: One, administering your estate and distributing the assets to your beneficiaries; Two, making certain tax decisions; Three, paying an estate debts or expenses; Four, ensuring all life insurance and retirement plan benefits are received; and Five; filing the necessary tax returns and paying the appropriate federal and state taxes.
Whatever your choice make sure that the executor, personal representative or trustee is willing to serve. In addition, it is a good practice to have a primary and secondary choices in the event that someone is either unable or unwilling to serve. Further, it is also a good practice to consider paying a reasonable fee for the services. The task of serving as personal representative, executor or trustee isn’t easy and not everyone will want to accept the responsibility.
Finally, make sure the executor, personal representative or trustee you select does not have a conflict of interest with your estate. For example, selecting a second spouse, children from a prior marriage or an individual who owns part of your business may result in an unintended conflict of interest between the selected party and the interests of your beneficiaries. The personal desires and objective of a stepparent and stepchildren may conflict and result in an unintended feud and a co-owner’s personal goal regarding your business may differ for those of your family and beneficiaries.
Peter D. Antonoplos, Esq. is a partner in the Law Offices of Peter D. Antonoplos, PLLC. Mr. Antonoplos’ practice focuses estate planning and real estate matters. Mr. Antonoplos is admitted to practice in the District of Columbia, New York State; and State of Maryland. Mr. Antonoplos routinely lectures on real estate and probate law issues in Washington, DC and New York. Mr. Antonoplos lives in North West Washington, D.C. He is an avid chess player and motorcycle enthusiast. He may be reached at 202-803-5676 or Peter@AntonLegal.com