by Shaina Case Part of your estate plan includes choosing who you want to act on your behalf as trustee, personal representative (executor/administrator), agent, or attorney-in-fact upon your death, disability, or incapacity. Below is a brief description of each role.
Trustee. In forming a trust, you are generally your initial trustee (you control and take care of the assets in your trust while you are alive and able). What happens upon your disability or death? By naming a successor trustee, you grant another person authority, first, to help take care of your trust assets or help take care of you financially while you are disabled and, second, upon your death, to manage your assets in accordance with your trust instructions.
Executor, Administrator, and Personal Representative. In establishing your Last Will, you will need to name someone to administer your estate and distribute your property according to your wishes upon your death—that is the role of the executor (executrix, if female). And if you do not have a Last Will at your death? Or failed to appoint an executor in your Last Will? The probate court will choose what is called an administrator (administratrix, if female) to complete these tasks. The personal representative is a catch-all, general term to encompass both an executor and administrator.
Agent. Have you signed an Advanced Health Care Directive? If so, you have likely chosen someone to act as your agent. Your agent has the power to make health care decisions for you in the event you lack capacity to make your own health care decisions. You can name one person to serve alone, choose several people to serve together, or even provide a pecking order so that if the first person you name is not willing, able, or reasonably available to make decisions for you, a backup is in place.
Attorney-in-Fact. If you’ve heard someone say they are the “attorney” or “power of attorney” for someone, they are likely referring to having been named as the attorney-in-fact (sometimes also referred to as an “agent”) in a document called a Durable Power of Attorney. The attorney-in-fact has authority, as a fiduciary (person in authority to act on your behalf and not in their own self-interest), to make financial and other decisions on your behalf in the event you become disabled or incapacitated and therefore incapable of taking care of your business affairs. The power granted is generally broad (although it can be tailored to certain limited powers) and includes, for example, the power of your attorney-in-fact to file your tax returns, write checks to pay rent, access your safety deposit box and digital assets, and apply for a motor vehicle certificate of title. Notably, an attorney-in-fact only has power over assets not held in your trust.