Who Should You Name in Your Estate Plan? Choosing the Right Person for Each Role
Creating an estate plan involves more than deciding who will inherit your assets. You also need to decide who you trust to step in and make important decisions or carry out your wishes when the time comes.
Who should serve as your Executor? Who should handle financial matters under your Power of Attorney? Who would you trust to make medical decisions if you could not make them yourself? And, if your estate plan includes a Trust, who should serve as Trustee?
It can be tempting to choose the same person for every role—or, if you have multiple children, to name everyone together so that things feel "fair."
But these roles involve very different responsibilities. The person who is best suited for one may not be the best choice for another.
Instead of thinking about who is oldest, who lives closest, or how to divide responsibilities equally, consider what each role actually requires and who is best suited for the job.
Executor: Who Can Handle the Details After Your Death?
Your Executor is the person responsible for administering your estate after your death. If probate is necessary, your Executor will generally be responsible for working through the probate process, identifying and protecting estate assets, addressing debts and expenses, handling financial and tax matters, keeping appropriate records, and ultimately distributing your estate according to your Will.
That can require organization, patience, attention to detail, and an ability to communicate with beneficiaries and professionals.
Don't Automatically Choose the Oldest Child
Many parents instinctively name their oldest child as Executor. Sometimes that person is an excellent choice—but birth order alone does not necessarily make someone well suited to administer an estate.
Consider questions such as:
Is this person organized and responsible?
Are they comfortable dealing with financial and legal matters?
Will they follow through on paperwork and deadlines?
Can they communicate effectively with the other beneficiaries?
Can they make decisions even when family members disagree?
Will they ask for professional guidance when they need it?
Family dynamics matter, too. If one child frequently clashes with siblings, naming that person Executor could make an already difficult time more stressful.
The best Executor may be your oldest child. But it could just as easily be a younger child or another trusted person.
Think Carefully Before Naming All of Your Children as Co-Executors
Another common approach is naming all of the children as Co-Executors because it seems like the fairest option.
But naming someone as Executor is not the same as leaving them an inheritance. It is giving them a job.
Having multiple Executors can also make estate administration more cumbersome. Co-Executors may need to coordinate decisions, paperwork, banking, property matters, and other aspects of the estate. If they live in different places, have conflicting schedules, or disagree about how something should be handled, even relatively routine tasks can become more complicated.
There can also be a financial consideration. Depending on the value of the estate and the circumstances, New York law may permit more than one Executor to receive statutory commissions, potentially increasing the total commissions paid from estate assets.
Instead of naming every child as Co-Executor simply to make things equal, consider whether one child is best suited to serve as Executor while another may be better suited for a different role in your estate plan.
Agent Under a Power of Attorney: Who Do You Trust With Your Finances?
Unlike an Executor, who serves after your death, an Agent under a Power of Attorney acts during your lifetime.
Depending on the authority you give your Agent, that person may be able to handle banking, investments, real estate transactions, insurance, tax matters, government benefits, and other financial or legal matters on your behalf.
Because a Power of Attorney can grant significant authority, trustworthiness should be at the top of the list.
Beyond that, consider whether the person is responsible with money, organized, comfortable keeping records, and capable of dealing with banks, financial institutions, attorneys, accountants, and other professionals.
A child who works in finance, business, accounting, or another field involving financial matters might be particularly comfortable in this role. But professional experience is certainly not required—and it should never take the place of choosing someone you trust to act in your best interests.
New York law also allows you to name a Monitor in your Power of Attorney. A Monitor can request records from your Agent and may provide an additional layer of oversight and accountability. This can be useful in certain circumstances, particularly when an Agent will be managing significant or complicated financial matters.
That said, there is an important distinction between wanting additional oversight and not fully trusting the person you are naming as Agent. As our attorneys often tell clients: if you already feel that someone needs a Monitor just to make sure they do what they are supposed to do, you may want to reconsider whether that person should be your Agent in the first place.
A Monitor can be a helpful safeguard, but it is not a substitute for choosing an Agent you trust.
Health Care Agent: Who Do You Trust to Speak for You?
Your Health Care Agent also serves during your lifetime, but the role is very different from that of your Power of Attorney Agent.
Under a Health Care Proxy, your Agent can make health care decisions for you if you become unable to make those decisions yourself.
A child, relative, or friend who works in the health care field may be particularly comfortable communicating with doctors, understanding medical terminology, and navigating the health care system.
But medical knowledge isn't the only consideration.
Think about who will remain calm in a difficult situation. Who will ask questions when they do not understand something? Who will advocate for you? Who understands your values and wishes?
Perhaps most importantly, consider who will be willing and able to make the decisions you would want made, even if those decisions are emotionally difficult or different from the choices they would make for themselves.
This is also where your Living Will can be important. While your Health Care Proxy identifies the person you want to make health care decisions for you, a Living Will can provide written guidance about your wishes for end-of-life care, including your preferences regarding life-sustaining treatment in certain circumstances.
When choosing a Health Care Agent, ask yourself whether that person will be able to understand and carry out the wishes you have expressed in your Living Will—even if they personally would make a different choice. Your Agent's role is to advocate for your wishes and values, not substitute their own.
The person who is excellent at managing your finances may not be the same person you want speaking with your doctors—and that's perfectly okay.
Trustee: Who Can Manage the Trust for the Long Term?
If your estate plan includes a Trust, you will also need to think carefully about who should serve as Trustee.
A Trustee is responsible for managing Trust assets and following the instructions contained in the Trust. Depending on the type of Trust and your particular estate plan, that could involve managing investments and property, maintaining records, making distributions to beneficiaries, and exercising discretion about when or how Trust funds should be used.
Unlike an Executor, whose role generally ends when the estate administration is complete, a Trustee may potentially serve for many years.
For example, a Trust created for children or grandchildren may continue long after your death. The Trustee may need to make decisions about distributions while balancing a beneficiary's needs with the long-term purpose of the Trust.
Someone who is trustworthy, financially responsible, organized, and capable of exercising good judgment may be a strong candidate. You should also consider the person's age, availability, relationship with the beneficiaries, and willingness to take on a potentially long-term responsibility.
"Fair" Doesn't Have to Mean Giving Everyone the Same Job
For parents with multiple children, this can be one of the hardest parts of choosing fiduciaries and Agents.
You may worry that naming one child as Executor will make another feel left out. Or you may feel that if one child is named under your Power of Attorney, the others should be named too.
But these appointments are not measures of how much you love or trust each child, and they do not have to be divided equally.
Instead, think about each person's strengths.
Maybe one child is exceptionally organized and financially savvy, making them a natural choice as Executor or Agent under your Power of Attorney. Another child works in health care—or is simply the person you trust most to advocate for your wishes—making them a better fit as your Health Care Agent. Another may have the judgment and temperament to serve as Trustee of a Trust that will continue for the next generation.
There may be meaningful roles for different children or family members throughout your estate plan without naming everyone to every position.
At the same time, you don't need to manufacture a role for each child simply for the sake of equality. If one person genuinely is the best choice for several roles, that may be the right decision for your plan.
The goal isn't to make the appointments equal. It's to put the right person in each role.
Don't Forget About Your Backups
Even after you decide on your first choices, there is another important question: Who will serve if that person can't?
The people you name today may predecease you, become ill, move away, experience changes in their own lives, or simply be unwilling or unable to serve when the time comes.
Naming appropriate successor Executors, Agents, and Trustees can help prevent gaps in your estate plan.
It is also a good idea to revisit these choices periodically. Someone who was the obvious choice 10 or 15 years ago may no longer be the best fit today.
Choose Based on the Role—not the Family Tree
There is no formula for deciding who should fill each position in your estate plan.
Your oldest child does not automatically need to be your Executor. Your financially savvy child does not necessarily need to make your health care decisions. And all of your children do not have to serve together simply because you want to treat them equally.
Start by looking at the responsibilities involved. Then consider the personalities, strengths, circumstances, and relationships of the people you trust.
A thoughtfully designed estate plan doesn't just answer what should happen. It also considers who is best suited to make sure it happens.
At Harris-Pero Law Firm, PLLC, we help individuals and families create estate plans tailored to their assets, goals, and family circumstances. Part of that process is helping clients think through not only what their documents should say, but who should be trusted with the important responsibilities those documents create.
If you are creating an estate plan or reviewing an existing one, it may be a good time to take another look at the people you have named—and whether they are still the right fit for each role.