Can I name someone other than family to handle my estate or affairs if I cannot?
Full Question:
Answer:
Any legal adult may execute a last will and testament or living will appointing any other legal competent adult as executor of the estate or agent for purposes of the living will. It does not have to be a family member.
If you die without a will, the probate court will appoint a person called an administrator, who will act as a fiduciary to collect your assets and pay your debts (including taxes). Then, after the time period set by state law, the administrator will distribute your assets to those people entitled to receive them. If you have a will, you get to choose this person (or a professional fiduciary, such as an attorney or bank) to handle these duties.
Rather than being called an administrator, a fiduciary that is nominated under a will is referred to as an "executor" or sometimes as a "personal representative." "
Although an executor basically has the same duties with respect to an estate as an administrator, the law treats these fiduciaries differently, based on the fact that you chose the executor. Because of this, it is presumed that you have greater trust in your personally nominated executor than you would have in a court-appointed administrator.
Similarly with legal documents effective prior to death such as an advance directive or durable power of attorney, appointment of the agent does not have to be done to a family member.
The express appointment of an agent can make a conservator unnecessary and allow the person of choice to conduct financial affairs, manage banking or brokerage accounts, employ caretakers, arrange for housing, make gifts and transfers, arrange for financial assistance or Medicaid and name a conservator should that become necessary. In the event of illness or incapacity, a durable power of attorney naming an agent to direct financial affairs may be as necessary as a medical directive, because ensuring appropriate medical care may require access to the ailing partner’s funds. It is important to follow the statutory requirements for drafting a durable power of attorney in the applicable jurisdiction. In New Mexico, unless an incapacitated person has created a financial power of attorney document, the court may order a conservatorship and designate an agent to make decisions on an incapacitated individual's behalf.
