16 Oct What you can control from the grave
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Q. I have some very specific wants when I die. What’s the best way to make sure my family follows my wishes — even if they don’t all agree with what I want?
— Not there yet
A. In the end, you’ll have to judge whether or not you trust your family to follow your wishes, but proper advance planning may make a difference.
For example, you can buy burial plots or crypts, fund a funeral trust and give instructions for funeral arrangements.
In your will, you may appoint a person to control your funeral and disposition, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.
“A will and other estate planning documents should be prepared with the assistance of a qualified attorney in order to ensure not only that they are properly executed, but also that they clearly set forth your intent,” Romania said.
Romania said if there is the possibility that any of your heirs will attempt to claim you were incompetent at the time you set forth your wishes, your estate planning attorney will take steps to document your competency. This may include having a physician examine you and providing evidence in medical records about your condition on the date of your execution of the documents.
Letting your family know your wishes in advance will help.
“Dealing with the death of a family member is a difficult time,” Romania said. “It is best not to also have to hear, and deal with, for the first time, decisions the decedent made which are contrary to the family’s own beliefs.”
By discussing your wishes in advance, you will give your family an opportunity to ask questions and possibly accept and understand your position. Then they may be less likely to believe your wishes were a mistake, she said. It will also give you an opportunity to consider your family’s position and perhaps make any changes you deem appropriate, she said.
You will need to choose an executor, who is the person you appoint in your will to administer your estate. If you create any trusts, you’ll need a trustee to administer any trusts.
“These can be the same or different people, however, it is very important that these fiduciaries appointed by you can be trusted to follow the directions in your testamentary documents, whether or not they agree with your instructions,” Romani said. “If you cannot trust a family member to do so, it may be best to appoint a corporate fiduciary, such as a trust company, or appoint a professional advisor instead of a family member.”
Romania said appointing a professional to act as a fiduciary may add an additional expense to administering your estate because it will generally require you enter into a separate fee agreement. But, it may better ensure that your wishes are followed in a case where you believe your family member, if appointed as a fiduciary, would disregard any directions.
Alternately, in the case of a trust, you could appoint a family member as the fiduciary and appoint an independent party as a “trust protector” who would oversee the fiduciary and ensure the fiduciary is carrying out his/her duties, Romania said.
“You cannot control everything from the grave, nor should you as you are not capable of foreseeing and providing for every potential change in circumstance,” Romania said. “But to the extent you want to ensure your funeral arrangements or that your assets pass to people or organizations that are important to you, proper planning and legal assistance are vital.”
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