One of the most important aspects of estate planning is to name an individual who will act on your behalf when you pass away. They will be legally authorized to assemble and manage your assets, pay any debts and fees related to the administration of your estate, and distribute remaining property to your loved ones. Should you fail to designate such an individual, the probate court will select one for you.
State laws typically refer to this person as your “personal representative.” These laws can also refer to this appointed individual more specifically as either an executor, administrator, or trustee. These terms all point to the similar functions, but there is a key distinction regarding their method of appointment to their role. This guide will help explain this personal representative vs. executor legal differentiation.
Role of a personal representative
In probate law, a personal representative is an individual appointed, either by a Will or a court, to administer a deceased person’s estate. When a Will is available, they are also responsible for carrying out the decedent’s last wishes.
The phrase “Personal Presentative” is an umbrella term that includes additional terms that are used interchangeably. Namely, executors and administrators are both types of personal representatives in the court of law. The key difference between these two types of personal representatives is whether or not the decedent left a Will.
Role of a executor
When probate is opened for a deceased person’s estate, the probate judge formally appoints an individual to oversee the administration of the estate. This is the personal representative of the estate, which is typically a person but can also be an entity such as a financial institution or Trust company. In some cases, it can be both.
If the deceased individual left behind a Last Will and Testament, then most likely they would have also named an individual they nominated to carry out their last wishes. If the judge formally appoints this individual named in the Will as the personal representative, then they are called the executor of the estate. When they are formally appointed to the role, they receive Letters Testamentary that legally authorize them to carry out their duties.
You have the freedom to choose anyone as your executor, regardless of their relationship to you or their status as a Beneficiary of your estate. Some individuals opt to designate a professional, such as a lawyer or a Trust company, as the executor of their estate. However, minors or those under a conservatorship (meaning they have been declared mentally incompetent or incapable of managing their own affairs) are ineligible to serve as executors.
With this point in mind, it is possible and even encouraged to name alternates. Alternate executors come into play if your first choice is unwilling or unable to serve. If the probate judge confirms that your primary executor cannot or is ineligible to serve, then they may instead appoint your alternate. There are also instances when the named executor has predeceased the Testator. These are all great reasons to make sure that you name an alternate, just in case. If none of your named executors are available to serve, then the court will appoint an “administrator with Will Annexed.” We will define the role of administrators shortly.
Last but not least, you also have the option of naming multiple individuals as Co-executors. It is important to carefully consider this decision because, according to the law, Co-executors must work together in agreement. This can cause coordination issues. For instance, one individual could effectively veto the actions of the others. Unless your Co-executors can work effectively in concert, the probate process could be significantly delayed.
Role of an administrator
If a decedent does not leave behind a Will, their estate still must be probated. Here, the court will appoint an administrator instead of an executor to serve as the personal representative to the estate. When you see that an administrator has been appointed to an estate, it indicates that the decedent died intestate (died without a Will), or their named executor(s) were not appointed by the court. Once appointed, administrators receive Letters of Administration instead of Letters Testamentary from the court.
This leaves us with the question of who can serve as administrator to a probate estate.
State probate laws provide guidance describing who the probate judge shall appoint to serve as administrator. For instance, many states require that the surviving spouse should be the primary candidate for personal representative, unless they are predeceased or are unwilling to take on the role. If the surviving spouse cannot serve, then the judge will simply move down the statutory list of other individuals who are eligible to serve. Common examples include surviving adult children, grandchildren, other descendants who are then followed by siblings.
In the case that the decedent has no living family members who are able or willing to take on the role of administrator, the probate court will appoint a Public administrator. This is a county official who will oversee the estate settlement.
The duties of an administrator do not differ functionally from those of an executor. They are appointed with the responsibility of overseeing estate administration through the probate process. The key difference is that the administrator is identified through an order of priority established by state law rather than the decedent’s personal decision.
Role of a trustee
A trustee can also be considered a type of personal representative, although there is some debate around this. Similar to executors and administrators, trustees fulfill the fiduciary role of managing a deceased person’s assets and property for the benefit of their beneficiaries. However, trustees operate outside of the probate process and therefore are not appointed by the court.
trustees are individuals (and sometimes entities) who were named by the decedent if they had created a Trust as a part of their Estate Plan. A Trust is a vehicle used to legally move assets and property out of an individual’s personal estate and into the Trust itself. This is a popular estate planning tool as it can help shield assets from the probate process, as well as creditors and certain taxes.
However, you’ll still need a trusted person to manage these assets after your passing and ensure they are distributed to your loved ones per your wishes. Your wishes and instructions are laid out in your Trust terms, and similar to your personal representative, you will name your designated individual as a trustee in your Trust documents.
Also similarly, you can name an alternate (named a Successor trustee) to step in and take over Trust management in case your primary trustee is unable or unwilling to serve. They will then ensure that Trust assets are managed and eventually distributed to beneficiaries as instructed.
Don’t let the court decide
In summary, an executor and personal representative are one and the same. executors are a type of personal representative that are appointed by a probate court to oversee the administration and settlement of an estate. The key distinction between a personal representative vs. executor is the manner in which this individual or entity is appointed. executors are appointed by a probate judge when they were named by the decedent in their Last Will and Testament. When an individual has to be selected by the court using a state statutory list, then they are instead called the administrator. While an executor and administrator essentially share the same functions within probate, the key difference is how they are selected.
Probate by Trust & Will is a tool designed to help you understand these types of confusing legal distinctions with ease. No one expects you to be fluently versed in the probate process and legal jargon, but the court system unfortunately doesn’t make it easy. That’s why it can be very helpful to make use of tools that are available rather than trying to navigate the process on your own. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
Is there a question here we didn’t answer? Browse more topics in our learn center or chat with a live member support representative!
Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
Share this article