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What is the difference between a trustee and an executor?

An executor is the term used for the person who is appointed by a Probate Court to handle the wishes and instructions set out in a Will. Other terms for this role may include the Will’s administrator, personal representative, or fiduciary.

A Trustee is named by the person making the trust. The Trustee has the authority to manage and distribute trust assets in accordance with the terms of the trust. A Trustee may be a person or an entity.

Both an Executor and Trustee have administrative duties. In cases of an ongoing trust, a Trustee will have discretionary duties as well: how to invest assets and making decisions about distributions.

What is the difference between an executor and an administrator?
An executor is the person nominated in a Will to settle the estate and appointed by the Probate Court.

An administrator is a personal appointed by the Probate Court when a person dies without a will.

When does my power as an agent under a Durable Power of Attorney expire?
When the person giving the power, the principal, dies or revokes the power, whichever comes first.
When does my power as a financial agent expire?
The power given under a Financial Power of Attorney expires when the person giving the power, the principal, dies or revokes the power, whichever comes first.
When does the agent listed on a financial POA sign the document?
The agent listed on a financial DPOA will need to accept their role as an agent – via signature – any time, as long as it is before the DPOA is used.
When does my power as an agent under an Advance Directive expire?
When the person giving the power, the principal, dies or revokes the power, whichever comes first.
When can I access funds for an estate to pay bills?
An executor cannot access funds in an estate until they have been appointed by a Probate Court, they have applied for and received a new EIN for the estate and they have opened a bank account.
Why do I need to get an EIN (Employer Identification Number)?
When someone dies, you are not allowed to continue to use their social security number (SSN) for any reason. You may apply on-line for a new EIN for the estate after it is open by the Probate Court and you have been appointed as executor or administrator. You will need the SSN for the decedent, and you will also need to furnish your own SSN on the application.
Is there a quick reference guide for the information I need for contacting other Helpers?

The principal may have completed a “Helpers Cheat Sheet,” which may be found in their “Red Book,” or their portal on this website. See the link below for a copy of the form.

Fillable_Helpers_Cheat_Sheet20180413102825.pdf(estateandelderlawgroup.com)

When do I get access to documents?
Wills and Trusts – Ideally, the person who creates the Will or trust will give the executor/Trustee copies of the documents before they lose capacity or die.

Financial and Healthcare POA Documents – Financial power of attorney may either be effective upon signing or not until the principal’s incapacity, as determined by a physician. A healthcare power of attorney is effective upon the principal’s incapacity as determined by their physician. We recommend agents have copies of the powers upon signing.

What documents make up a comprehensive estate plan?
A comprehensive estate plan will consist of several key documents to help individuals manage and protect their assets and to increase the likelihood their wishes are carried out. Some common components include:

Last Will and Testament – A legal document outlining how a person’s assets should be distributed upon their death. A Will allows individuals to specify beneficiaries, appoint an executor, and nominate guardians.

Revocable Living Trust – A legal arrangement in which a person (often referred to as the grantor, settlor, or trustmaker) transfers their assets to the Trustee of the trust during their lifetime. The grantor controls and can make changes to the trust – even revoke it completely if needed. The trust outlines how assets should be managed both during the grantor’s life and after their death. Assets in the trust can be passed to beneficiaries without going through probate and may provide protection of the assets during the term of the trust, which may be for generations.

Durable Power of Attorney (DPOA) – a DPOA authorizes someone (often referred to as the agent) to make financial and legal decisions on behalf of the person creating the document (known as the principal). A DPOA will remain in effect if the principal becomes incapacitated or unable to make decisions for themselves. The power ends when the principal dies.

Healthcare Power of Attorney– A healthcare power of attorney appoints an individual (or healthcare agent) to make healthcare decisions on behalf of the person creating the document if they become unable to do so themselves. The healthcare agent increases the likelihood an individual’s healthcare wishes are followed and communicates with healthcare providers.

Living Will (Advance Healthcare Directive) – A Living Will is a document which outlines an individual’s preferences for medical treatment and end of life care in the event they become terminally ill or unable to communicate their wishes. It acts as a guide for healthcare agents to make specific health care decisions when the individual can not.

When assigned as a helper, ask yourself the following questions to get prepared:
  • Do I know where important paperwork, including the Caldwell Law ‘Red Book’ is kept?
  • In addition to the important paperwork and information I am already privy to, what else should I know about my principal’s wishes or their planning which would help me act for them?
  • What questions do I have concerning my role as agent, executor, or trustee?
  • Do I know who my principal’s health care, financial, tax and legal advisors are?
  • What does my principal want to consider when it comes to their digital assets?
  • Are there any charitable giving strategies that my principal may be interested in exploring?