Perhaps the most important decision in most estate plans is who you decide to act on your behalf as a fiduciary.

A Fiduciary is anyone who is tasked to act on behalf of another in a legal capacity and the term includes Attorneys-in-Fact, Health Care Representatives, Personal Representatives, and Trustees. Because there is no telling what the future may hold, it is highly recommended that an estate plan designate two back ups for each fiduciary. Below I will outline the types of fiduciaries and the primary considerations for each.

In short, you should consider the following criteria when selecting fiduciaries: trust, capacity and willingness, age, competence, familiarity with your wishes and assets, rapport, and reliability.

Common Consideration for All Fiduciaries

Trust.

Above everything else, it is important that you trust your fiduciary to do what you want them to do with your money or your health.

Capacity and Willingness.

Acting as a fiduciary can be taxing both in terms of time and emotional commitments. It is best to consider whether an individual is willing and able to handle the burden of managing your assets and or health care decision.

Age.

Estate Planning documents are indended to last and so it is important to consider the possibility that old age may diminish a potential fiduciary’s capacity or willingness. For this reason, it is recommended that at least one successor fiduciary be under the age of 50.

Personal Representative

(Also known as Executor or Administrator)

This fiduciary is appointed to handle all aspects of a deceased individual’s estate: from funeral arrangements to the final distribution of assets. Either by themelf, or through a professional working on the Estate’s behalf, they will be required to make several filings with the Surrogate Court, inventory assets and liabilities, manage all assets leading up to their distribution, oversee the sale of property, distribute assets per the Will, pay outstanding bills, file taxes, and any other task that may arise with the estate. When selecting a Personal Representative, the key factors that should be considered are:

Competence (Head for Numbers).

The most difficult tasks involved with Estate Administration all pertain to the management of the decedent’s assets and liabilities. For this reason, your Personal Representative should be capable of managing balance sheets and have some background knowlege of finances.

Familiarity with your Assets.

Probate is far simpler and smoother if the executor is familiar with the Estate before the decedent passes away.

Good Rapport with Beneficiaries.

If your Personal Representative commands respect from those who stand to gain from your estate, potential conflicts between beneficiaries are more likely to deescalate.

Reliability.

There are multiple deadlines regarding the Probate of an estate, and so the individual must be able to meet those deadlines.

Proximity.

After COVID-19, many of the mandetory appearances in Surrogate Court have been waived and it is fairly simple to manage an estate remotely, but there is no guarentee that the remote options will continue to be available in the future. It may be a greater burden on a Personal Representative who is not local. Additionally, dealings with real property and physical property are best conducted in person. Therefore, if you are between two individuals, it would make sense to chose the local.

Multiple Personal Representatives?

The State of New Jersey permits multiple individuals to serve as your Personal Representative simultaneously. They can either serve jointly (must have both signatures on all documents) or separately (either one may sign). The benefit of having multiple people serve at once jointly is that it adds an extra level of protection that can keep the peace. This option is often best if you have children from multiple marriages and you would like both sides of your family to be represented. The downside of joint representation is that working together can often be cumbersome. Having two individuals serve seperately can decrease the ammount of work on any one representative but your assets have reduced security as one representative’s decisions are binding to both. It is not uncommon to select two of your children to serve seperately, so that they can each handle different matters of the estate and divide the work.

Attorney-in-Fact

The considerations for your Attorney-in-Fact are virtually the same as your Personal Representative, and further, it is highly recommended that you select the same individual(s) so that there is no inefficiencies between transitioning administration from your final illness to your estate.

Like a personal representative, you may select multiple Attorneys-in-Fact who can either serve jointly or separately.

Trustee.

A Trustee is appointed to be in control of a trust fund. They will control the investing of assets and distributions to the beneficiaries. The extent of power in a trustee is determined by the trust document.

Selecting a trustee is largely the same as selecting a Personal Representative as well, however, the key difference is that the Trustee should have a good rapport with the beneficiary of the trust. The beneficiary should feel comfortable with the Trustee to discuss their needs.

Like a personal representative, you may select multiple Trustees who can either serve jointly or separately.

Health Care Representative

Your Health Care Representative will make medical decisions on your behalf if you are unable to do so. As it is often difficult to predict how someone may react in a crisis, it is recommended that you choose someone who holds the same values as you as your Health Care Representative. Similarly, if your religion advises your medical decisions, particularly related to end of life care, you will want to select a Health Care Representative who understands and respects your beliefs.

The State of New Jersey does not permit multiple Health Care Representatives to serve at the same time.