What Do I Need to Determine Before We Meet?
by Dwight K. Muraoka, Maui Estate Planning Attorney
This is another great question, and one which we encounter regularly when assisting Maui residents with their estate planning.
It is always helpful to have at least a general idea of who you want to name as a beneficiary, and what each should receive. For parents who have only one child, this might be obvious. But what if that child doesn’t survive her or his parents, or declines the inheritance? It is therefore usually a good idea to have more than just an initial beneficiary in mind.
Other families have several children who are to be named as beneficiaries. In some cases, the parents adore all of the children, and decide to leave everything equally to each child. In other cases, the parents decide to leave specific assets to each beneficiary. Therefore, for example, the home on Maui might be left to one child, and the rental property on another island is left to the child who lives there.
We assist each of our clients with ensuring that their desired plan of their plan of distribution is developed and then put into writing.
It’s also a good idea to be prepared to name those who will be appointed to administer or oversee various aspects of your estate plan. This is an extremely important part of the process, given that each of these people will be acting on your behalf after you are unable to do so, or have passed away. The positions to be filled typically include the following:
Successor Trustee. This is the person who is appointed in the Trust Agreement to act as Trustee, if you or whoever is then serving becomes unable or unwilling to serve. This is an extremely important decision, and one which is usually based upon criteria related to the role and responsibility of the position, rather than arbitrary characteristics such as age or gender. Of course, this person is needed only if you have a Trust.
Personal Representative. This is the person named under a Last Will and Testament, to oversee the administration of the Will. Hawaii residency is no longer required for a person serving in this capacity. The Personal Representative is also sometimes known as an “Executor.”
Guardian. This is the person, sometimes referred to as a “Conservator,” who will be responsible for the care and upbringing of underaged children or other incapacitated family members. In certain cases, this person will also oversee the management and distribution of assets belonging to the minor or incapacitated person.
Attorney in Fact. This is the person who is authorized to make financial and legal decisions on your behalf, under a “Power of Attorney.”
Agent. This is the person named under an “Advance Health Care Directive” to make medical decisions on your behalf. In general terms, this is also the person named under an “Authorization for Use and Disclosure of Medical Information” to obtain information pertaining to medical care while you are hospitalized.
Designee. This is the person named under an “Authorization to Control Disposition of Remains” to oversee funeral arrangements and other details pertaining to the disposition of one’s remains after death.
While the same person can serve in more than one position, the choice of who should be named is not always as simple as it may initially appear. This is due in part to the fact that the documents mentioned above have different purposes. However, other considerations, including but not limited to the types of assets one owns, and family circumstances and relationships, are also often relevant. We assist our clients with selecting appropriate people to fill each position, based upon the documents selected for their estate plan.
Generally, it’s also very helpful to have ownership documents for larger assets, such as deeds for real properties, and stock or member certificates for family businesses or other entities, available. Among other reasons, this is because the manner in which an estate plan will be structured often depends upon how larger assets are titled.
Addressing these concerns in advance often helps the planning process to proceed more efficiently.
Note: The information in this article and throughout this website is not intended, and should not under any circumstances be interpreted, as legal advice. This article is intended only as a general discussion, and should not be read or viewed as a comprehensive analysis of all relevant aspects, of each topic discussed. The reader is encouraged to consult with legal counsel for assistance with any aspect of the estate planning process, and any other matter of a legal nature.