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CHOOSING THE RIGHT EXECUTOR AND TRUSTEE
Choosing a personal representative may be the
most important estate planning decision of all if you want to maximize the likelihood
that your wishes are followed.
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Personal representative is a generic
term, referring to an executor or a trustee who is named in a trust to carry
out its terms.
An administrator is also a personal representative and
is court-appointed to perform the executor's duties when a decedent has no will.
Unfortunately, the person appointed might be a family member whom the decedent
would not have wanted. Alternatively, the court might find it appropriate to
choose a neutral third party—usually a lawyer—to serve as administrator. In
the latter case, the estate is responsible for paying the administrator an hourly
fee for all services performed.
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Any of these personal representative roles can be filled by an
institution, such as a bank, as well as by an individual. Obviously, however,
whoever serves should be capable of doing the job, and this is a matter that
often deserves much more thought than it is given. In many cases, relations
among the surviving family are harmonious, there is little to be done, and everything
works smoothly—no matter who is running the show.
When disputes arise or there is bickering, however, family diplomacy
might be called for. Remember that some of us are better at this than others.
Occasionally, on the other hand, someone must be ready, willing and authorized
to lay down the law and get things done. The selection of this person (or institution)
should not be left to chance; he or she should be named by the decedent in a
will or trust.
Your personal representative, in most cases, is going to have "by
necessity" extensive, if not total, access to your property. Very bluntly, a
trustee, executor, or administrator is in a position to rob you (or your heirs)
blind or to ruin your plan through inaction, if somebody else acts improperly.
Indeed, misconduct is probably the most common factor in estate and probate
horror stories.
Of course, objections or complaints can be
filed in court. But these can be difficult moves, and they are made after the
damage is at least partially done. There is no close court supervision to prevent
the misconduct. Therefore, you should not move forward with any plan unless
you feel comfortable with the person or institution you have chosen.
With legal self-help resources like consumer software and freely available
information online, it is worth examining whether you need the help of an attorney
in your estate planning.
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