When you are establishing a Last Will and Testament - one of the issues that you confront is the selection of a Personal Representative.  If you are part of a couple, you will usually select one another.  Yet, you really need to select an alternative to serve in the event that the person you have chosen is not able to serve. 

While it may seem logical to select a family member to serve in this capacity - his or her expertise will determine how quickly and/or smoothly the process is completed.  If the individual selected has limited bookkeeping or money management skills, or is very busy - the process could be slowed down.  Additionally, the selection of one family member could place him or her in the middle of a family disagreement. 

If the assets of the estate are depleted without leaving sufficient funds to pay the inventory fee or the estate taxes, the Personal Representative could be personally liable.  

It should be remembered that this is less of an honor and more of a job than most people anticipate.   It is time consuming and it is an enormous responsibility. 

The qualities of a good Personal Representative include: 

•Trustworthy - this individual will be entrusted with property and cash assets

•Fair - he or she should not show favoritism to one beneficiary over another

•Common sense - this is a must - the individual should show practical common sense for getting the job done

•Strong and/or tough - this individual may be placed in the center of debates and arguments concerning the distribution of your estate and he or she must be able to make the hard decision and stick with it.

At the conclusion of a divorce proceeding, both parties are sick of the legal system, lawyers and legal fees.  This is understandable.  None the less, it is important to address a change in your estate planning documents immediately after the divorce is final. 

During your marriage - you had joint ownership of many assets which has now been dissolved.  You named one another as the Personal Representative of your estate upon your death, the agent under your Durable Power of Attorney and the Patient Advocate under your Designation of Patient Advocate (Medical Power of Attorney).  

Do you really still want your ex-spouse to serve in these capacities?  

It is time to select new agents for each of these estate planning documents.  You will want your health care and finances to be controlled by someone else in the event of your incapacity.  

For individuals with minor children, there are post-divorce estate planning concerns as well.  You cannot name a third party as the guardian of your child upon your death instead of the remaining parent.  Your ex-spouse will have the first opportunity to raise your child(ren) if you die prior to their 18th birthday unless he/she is unavailable, doesn't chose to do it, or is totally unsuitable due to prior abuse or serious criminal activity.  

You can, however, name a conservator for your children.  This individual would be responsible for the money you leave for the care of these children.  Unless you would like your ex-spouse to control the money, it is important to name someone who would be willing to assume this duty and would do it honestly and carefully. 

During your divorce, you became independent and you negotiated for your fair share.  It is important that you assure that your fair share is passed on to those you choose. 

When they have a child of their own, it is time for some thoughtful consideration of their child's future.  If something happened to them, who would care for their child. 

Tom and Nancy were married and had a child, Max.  Nancy had been raised in a very strict family.  Her parents were affluent.  She had a difficult relationship with them - they had not approved of her selection of Tom as a husband, nor of her choice of a profession - social work.   Nancy did not look upon her childhood fondly - she felt that it had been too strict, her parents too judgmental and controlling. 

Tom's family was large and easy going.  He had a great childhood and a really close relationship with his brothers and sisters and his parents.  Although they live in another state, Tom and Nancy see them frequently and check in with them weekly on the telephone.  Tom's choice to be a teacher made his parents proud. 

Tom and Nancy did not execute a Will - they had little - a new home with a mortgage, cars with loans, little in the bank.  If asked, both Tom and Nancy would have desired that Max live with Tom's parents or one of his siblings if anything were to happen to them.  This was not written down.  Tom and Nancy were killed in an automobile accident when Max was only five years old. 

Since they lived locally, Tom's parents immediately took Max into their care.  Additionally, they filed Probate proceedings for Tom's estate and for Guardianship of Max.  While Tom's parents also requested to be considered for Guardianship of Max, they were out of state and had few monetary resources.  Issues for the court to consider included whether it would be good for Max to be removed from the school and the community that he lived in to be taken across the country when there were relatives here ready and willing to raise him.  

How could this have been avoided? 

Tom and Nancy should have executed simple Wills.  While a young couple may not have many monetary assets to worry about, their most important "asset" - their son - was at risk.   A Will sets forth who a couple wants to be the guardian and the conservator of their children in the event of their death.  While most never face this situation - it does happen.  It is worth taking the time to make provisions for children in the event of their parents' death.