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You Can Love Them Both Equally, While Delegating To Their Strengths

July 2016

A few months ago during a family outing the discussion of personal representatives came up. Years ago, while I was still a student, my mother named my older sister as her power of attorney and health care agent. My sister and I are my mother’s only heirs and being the estate planning attorney you would think that over the past few years she would have added me as a co-representative; however, I advised the opposite. Understanding my family dynamic and my role as the youngest child, while also having faith in my older sister's capabilities – I happily set aside my degree, passion for trusts and estates, and allow her to lead in the event of an emergency.

Often parents with multiple children decide on naming some or all as co-trustees, co-executors, or co-agents in their estate plan. Sometimes it is because both children are capable; often it is because they want to show their children that they love them all the same and do not want anyone to feel “left out”. In many cases this may be perfectly fine, especially if you know that your children are in alignment when it comes to understanding and adhering to your wishes or are both fiscally responsible. However, naming co-representatives who have historically not agreed on just about anything since they could talk can leave your estate plan in disarray.

Being an executor or trustee, especially in a contested matter can result in years of responsibility and working on the estate’s behalf. Appointing co-representatives can be a great way to alleviate and balance the workload involved in managing your estate and avoid representative burn out. However, due to the fact that your representatives must act together and have a ruling majority, co- representative issues may begin to arise if you only choose two representatives and they do not agree; while sharing a 50-50 power-split. In a similar vein, because your co-representatives must work together, geographical location is another important factor to consider – especially when time is of the essence and documents require the original signatures of all of your agents. Power struggles, disagreements, and geographical limitations all pose potentially insurmountable obstacles to your estate running efficiently when outcomes are reliant on multiple parties and personalities.

One way to overcome the potential pitfalls of co-representatives is to delegate certain responsibilities to those who are better suited for the task at hand. Although, statutorily, you cannot have multiple health care agents in New York you can task one representative, who is more inclined to act as a compassionate caregiver with that role; while, another child/representative who is more financially savvy may serve as your primary power of attorney. By task splitting, a testator can involve multiple children, build an estate plan that will run smoothly, and avert familial discord or the appearance of “favoring or trusting one child more than another.”

Each family is different and presents unique obstacles and requires different considerations when estate planning. One of the best ways to avoid potential conflicts is to have an honest conversation with your children, weigh their capabilities (and deficiencies) in regard to the task at hand, and consult an estate planning attorney. At McCormick & O’Brien, LLP we pride ourselves in providing sophisticated, pragmatic, and compassionate estate planning services and consultations to assist in your heir-tight succession plan.