When discussing your estate plan with a lawyer, you’re likely to hear and talk about many of these terms. You’ll be nominating someone for these roles, so it’s best to have an understanding in advance what the role of each one is, and why that person is important.
Broadly, an agent is someone who acts on behalf of another. A representative. All of the roles discussed below (attorney, executor, trustee, guardian) are your “agents” as each is nominated to act on your behalf in one way or another.
An attorney is someone who acts for you in business or legal affairs. It’s nearly synonymous with “agent” but a bit more specific. So when you see “Power of Attorney,” you’re authorizing another – aka “giving them the power” – to act as your representative. When, for example, you see “Health Care Power of Attorney” you’re authorizing that person to act as your representative in regards to health care decisions. (For more on Powers of Attorney, see my post here.) In common usage, “attorney” usually refers to your lawyer, which is correct because he/she is your representative in a legal capacity. But it can also refer more generally to a representative granted authority under a Power of Attorney.
This is the individual nominated by you or appointed by the court to carry out (or execute) the terms of your Will. This person is responsible for admitting your Will to court (known as “probating the Will”), inventorying your assets and making sure they are distributed pursuant to your wishes. It can be a demanding role, so Executors often hire lawyers, accountants and other professionals to help. It is a sign of trust to name someone as your Executor but also requires a lot of responsibility. Chose your Executor carefully.
A Guardian is someone given the responsibility of caring for another and managing their property because they, for one reason or another, are considered incapable of doing it by themselves. A Guardian can be appointed to help young children or individuals with physical or cognitive disabilities. If you have young children, you’ll nominate a Guardian through your estate plan to take of your children if you cannot. (For tips on selecting an appropriate Guardian for your children, see my post here.)
If you create a Trust or provide significant gifts to minor children through your Will, you will need a Trustee. The role is similar to that of an Executor, although the Trustee acts in accordance with the terms of your Trust, providing an accounting of Trust assets and ensuring they are distributed properly. Trusts can be created during your lifetime (“inter vivos trusts”) or through your Will (“testamentary trusts”). (For a description of some of the benefits of a Trust over a Will, see my post here.)
For further distinctions or to begin selecting your own representatives, fill out the form below to set up an appointment.
Disclaimer: This material is intended for general information purposes only and does not constitute legal advice. Responses to inquiries, whether by email, telephone, or other means, do not constitute legal advice, nor do they create or imply the existence of an attorney-client relationship.