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When the Time Comes, Do I Need to Serve If I am Named as an Agent in a Loved One's Estate Plan?

Updated: Nov 9, 2021

Congratulations! Your loved one trusted you enough to name you as their Agent under a Power of Attorney or as their Personal Representative or Trustee. But what does that mean? Does it mean that you have to actually serve as their Agent, Personal Representative, or Trustee? What if you do not want to serve (for your own reasons)? Is there a way out? Fortunately, the fact that you are named in a loved one's estate planning document does not mean that you are stuck in the position that your loved one wishes you to hold.

Power of Attorney for Financial or Health Care. If you are named as the Agent for a loved one's Durable General Power of Attorney or a Power of Attorney for Health Care, and you do not want to serve, you can decline or resign from the position when the time comes. The next named Agent will then step up upon your declination or resignation. If you are the last named Agent, then provided that the document allows, you should appoint your replacement before resigning. The method to decline or resign will depend on the document, but you will typically need to sign a declination or resignation document.

Will. If you are named as the Personal Representative in a loved one's Will, you are not officially the Personal Representative until the Court appoints you to that position. Thus, if you do not want to serve as the Personal Representative, after the death, you would need to sign a statement declining to serve as Personal Representative and the next named Personal Representative would step up and petition the Court to be appointed. If you are considering not serving as the Personal Representative, you should ideally make the decision before the probate process begins. Deciding to quit in the middle of the probate process will create more work for all involved.

Trust. If you are named as a Trustee in a loved one's estate planning documents (Living Trust or Testamentary Trust), you can decline to serve right from the beginning or resign from the position later on. The method to decline or resign will depend on the process outlined in the document. Typically, a declination or resignation document is needed from the named Trustee declining or resigning, and an acceptance document from the next named Trustee who is going to serve.

If you know that you are named in a loved one's estate planning documents and you know that you do not want to serve in that capacity, please speak with your loved one. If your loved one has the capacity to make changes to his or her estate planning documents, making the change to remove you from the position will be the easiest, and likely, the most cost-efficient option. But if your loved one is unable or unwilling to make the change, then you will simply need to go through the declination or resignation process.

If you have named a loved one in your own estate planning documents, you may want to confirm with your loved ones that they are still willing to serve in that capacity, especially if it has been a few years (typically, you should review every four to six years) since you have updated your estate planning documents.

If you want to create or update your estate plan, please call Rehberg Law Group at 206.246.8772 to schedule a no-cost appointment with one of our attorneys.

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