Executor / Administrator

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Executor / Administrator

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How to Be an Efficient Executor or Administrator of the Estate

Keystone’s executor and administrator services are designed to help administrators and executors of estates efficiently navigate the administration process and all that comes with it, including any estate disputes that arise. Our administrator and executor attorneys can serve as an excellent resource for executors and administrators who need clarification about their duties or help with fulfilling them.

What if the will is ambiguous in its terms? As the executor of the will, when should you solicit the help of a legal professional?
What if you’ve been unable to track down certain assets belonging to the estate? As the executor or administrator, are you responsible for filing a claim against the person or persons you believe to have misappropriated them?
What if a third party is claiming ownership of property that currently belongs to the estate? As the executor or administrator, is it your responsibility to defend the claim through litigation?
Do you have the right as the executor of the will to withhold a beneficiary’s distribution?

There is ample room for error during the administration process, but with Keystone’s administrator and executor lawyers guiding you, you can rest assured the job will be done right. We’ll answer these questions and more in the following guide for executors and administrators. Reach out to the team at Keystone Law Group for more information today.

Chapters

Executor vs. Administrator

Section 1

Executor vs. Trustee

Section 2

Duties of Executors and Administrators of Estates

Section 3

Powers of Executors and Administrators of Estates

Section 4

How Our Administrator and Executor Services Can Help

Section 5

Executor vs. Administrator

What is the difference between executor and administrator? Put simply, the job of an administrator or executor is to administer a decedent’s estate.

This process can consist of everything from submitting the will to the probate court and paying off the decedent’s creditors to litigating on behalf of a decedent’s estate and making distributions to beneficiaries.

What Is an Executor of a Will?

When a person signs a will, they name someone they trust to be the executor of their estate. Executors are responsible for everything from filing the will with the probate court to litigating, if the interests of the estate are at stake. They are bound by the terms of the will and have little discretion in determining who gets what.

While almost anyone can be named as the executor of an estate, it is usually a trusted family member, a friend of the decedent or a professional third party.

What Is an Administrator of the Estate?

In situations where a decedent dies without having signed a valid will, a will fails to nominate an executor, or the individuals designated as executors are unable or unwilling to serve, the court will appoint a responsible party known as an “administrator.” The role of an administrator of an estate is the same as that of an executor, despite their different titles.

Only certain persons identified by statute – typically, the decedent’s surviving spouse or another close family member of the decedent – can act as the administrator of an estate. If there are multiple parties vying for an appointment as administrator, statutes may govern priority of appointment.

Key Differences Between Executors and Administrators

While the differences between executors and administrators are subtle, they are important to keep in mind if you have been appointed to either of these roles.

Executor vs. Trustee

Executors deal in wills and manage estate assets, while trustees deal in trusts and manage trust assets. It’s as simple as that.

Sometimes, decedents die with a unified estate plan consisting of both a will and trust. Unless there are disputes about which assets belong to the estate and which belong to the trust, there will be little to no overlap between the two roles, even if the executor and trustee are the same person.

Other key distinctions between executors and trustees to keep in mind include:

The job of an executor ends once the property held by the estate has been distributed.
The job of a trustee may be ongoing, depending on the terms of the trust.
The job of an executor starts once the creator of the will dies.
The job of a trustee can start while the creator of the trust is living or after they have passed.

What Should the Executor Do If the Trust Conflicts with the Will?

A trust is a separate entity from an estate. It pays its own taxes and has its own expenses and debts. This important distinction accounts for why property held within a trust isn’t required to pass through probate like the property held by an estate.

Sometimes a decedent will create a trust that identifies certain property (e.g., the decedent’s home) as a trust asset, but the decedent neglects to transfer the property to his or her trust before they die. Does an executor or administrator need to include the property as part of the decedent’s probate estate, even though the decedent intended the property to pass through the trust?

Probate Code section 850 gives executors and administrators (along with other interested parties) the opportunity to file petitions (known as “850 Petitions”) in the probate court to transfer the property to trust—which may help avoid probate altogether.

An administrator or executor lawyer can help navigate any property disputes that arise concerning estate property.

Duties of Executors and Administrators of Estates

It is crucial for administrators and executors of estates to have a firm understanding of what is required of them. Failing to complete any duties or completing them improperly could have serious financial consequences, especially if their mistake – regardless of whether or not it was intentional – caused damage to the estate.

Administrator and executor attorneys can help ensure the administration process progresses smoothly. If any disputes arise, they can help resolve them through litigation or other means.

What Are the Responsibilities of Administrators and Executors of Estates?

The most important duty of executors and administrators is their fiduciary duty to beneficiaries. This means that every action they take on behalf of the estate – whether it be selling property or litigating – must align with the beneficiaries’ best interests.

Other duties of executors and administrators of estates may include:

Making funeral arrangements for the decedent
Determining whether probate is necessary
Obtaining a copy of the will to submit to probate court
Notifying beneficiaries, creditors and other interested parties about the decedent’s death
Creating an inventory of the estate’s assets
Marshalling and managing a decedent’s assets
Providing accountings to beneficiaries
Paying the decedent’s taxes and debts, and addressing creditor’s claims
Distributing the decedent’s property to beneficiaries
Litigating on behalf of the estate (if it becomes necessary to do so)

Depending on the size and overall complexity of an estate, an executor or administrator’s job can range from being relatively easy to extraordinarily difficult. Regardless of where on the spectrum you fall, our administrator and executor lawyers can streamline the process for you by helping every step of the way.

Powers of Executors and Administrators of Estates

Administrators and executors must walk a fine line between taking decisive actions to benefit the estate and overstepping their boundaries. An administrator and executor lawyer can counsel executors and administrators about what they can and cannot do to ensure their decisions regarding the estate don’t come back to bite them later.

What Is an Administrator or Executor of the Estate Permitted to Do?

Because executors of wills have a great deal of discretion in estate matters, it is important for testators to designate an executor whom they trust. There are many powers executors have that even beneficiaries can’t take away.

The powers of executors and administrators of estates include, but are not limited to:

The right to liquidate estate assets to pay debts, taxes and other expenses
The right to use estate funds with prior court approval to hire third-party professionals (e.g., lawyers, financial advisers) to assist with duties
The right to be reimbursed for any expenses personally incurred in relation to the estate
The right to be compensated for the time and effort spent administering the estate
The right to reject the appointment or to resign

What Is an Executor of the Estate Forbidden from Doing?

There are several things administrators and executors must remain mindful to never do, no matter the circumstances of the situation. A costly legal battle holding the executor of the will personally liable could result if any of these guidelines are breached.

An executor of estate can never:

Alter the will instrument
Sign the will for the testator
Stop beneficiaries from contesting the will
Execute the will before the testator has died

If any confusion exists as to what your rights are as an executor or administrator of an estate, it is crucial you consult with an administrator or executor attorney to be provided clarification.

When Are Executors and Administrators Required to Involve the Court?

If a decedent dies with a will, the person whom they designated to be the executor of their estate should submit their will for probate and petition the court to be formally appointed as the executor of the will. Administrators, conversely, are appointed by the court when there is no will, if a person was not nominated by the decedent in their will, or if the person nominated as the executor is incapable or averse to serving.

Besides these preliminary steps, executors and administrators may have to report to the court for the following:

To obtain permission for selling a decedent’s real estate

To obtain permission for selling a decedent’s property at less than market value

To provide a final accounting and close the estate

To compensate the estate’s legal counsel from estate assets

To compensate the executor or administrator from estate assets

To address any estate disputes that arise

Are Administrators and Executors of Estates Entitled to Compensation?

Because it is hard work to be the executor or administrator of an estate, most states entitle executors and administrators to be paid for their time.

In California, administrators and executors are compensated for “ordinary” services (i.e., services that are generally required in estate administration ) according to a statutory formula that is based on the value of the assets in the estate.

For “extraordinary” services rendered to an estate (i.e., services that go beyond those that are ordinarily required), such as litigation and the sale of real estate, the court has discretion to award additional fees, which are usually based on the time expended by the executor or administrator, the difficulty of the work performed and the result of the services rendered, among other factors.

Are Executors and Administrators Permitted to Sell the Decedent’s Property?

Executors and administrators are generally permitted to sell a decedent’s property as part of the administration process. In certain circumstances, the executor or administrator may need to obtain prior court approval before proceeding with the sale.

Common reasons for selling property include:

The estate does not have sufficient funds to pay off the decedent’s debts, taxes and other expenses.
The terms of the will state that a certain piece of property is to be divided among beneficiaries and it is impossible or impractical to do so without selling the property.
The terms of the will designate a certain piece of property for sale.

Executors and administrators should consult with an administrator or executor attorney before selling any of the decedent’s property to ensure the sale is lawful and in the best interest of the beneficiaries.

Can Executors and Administrators Reject Their Appointment or Resign After the Process Has Started?

Executors and administrators have a right to turn down their appointments or step down from their roles at any time.

If a proposed executor or administrator wants to decline to act prior to being appointed, they simply have to submit a form to the court stating their wish to not be named as the executor or administrator.

If an appointed administrator or executor seeks to step down from their role, they generally must petition the court in order to resign and have a new executor or administrator appointed.

If the executor resigns and the decedent had named an alternate executor in their will, that person will have the opportunity to step in. If an alternate executor has not been designated, the next of kin may be chosen to fill the role.

In the event no one is willing to take over as executor or administrator, the court may appoint a professional third party.

What Are Some Examples of Executor and Administrator Misconduct?

Executor and administrators can sometimes – intentionally or unintentionally – breach their duties. When this happens, and their actions (or lack of action) cause damage to the estate, they can be removed, surcharged and replaced.

Examples of executor or administrator misconduct include:

Not keeping beneficiaries reasonably informed about the administration process
Improperly withholding distribution of estate assets
Failing to pay the decedent’s creditors, taxes or other expenses
Mismanaging, stealing or losing estate property or funds

How Our Administrator and Executor Services Can Help You

There is a lot you will be responsible for as the executor or administrator of an estate. None of your duties can afford to be overlooked or carried out improperly. Administrator and executor lawyers can make your job easier by providing support and guidance throughout the administration process, as well as counsel if any disputes arise.

Were You Appointed the Administrator or Executor of an Estate?

Perhaps you’ve been named the executor of a will. Or maybe, if there was no will, the court has appointed you to be the administrator of the decedent’s estate. You’re probably wondering: What’s next? How do I get the process started?

Because of the sheer number of responsibilities executors and administrators have, the best way to start the administration process is by hiring an administrator and executor attorney to help guide you through it.

Keystone’s administrator and executor services include, but are not limited to, the following:

Providing counseling to executors and administrators throughout the administration process
Determining whether probate is necessary
Preparing accountings
Determining which creditor claims are valid and which aren’t
Litigating on behalf of an estate
Defending litigation brought against an estate
Making distributions to beneficiaries and closing the estate

What Should Executors and Administrators Do in the Event of a Dispute?

When disputes arise in regard to an estate, executors and administrators should ask themselves whether the estate’s assets are at stake. If they’re not, the executor or administrator should most likely abstain from participating in the dispute. Instances in which the executor or administrator should consider getting involved include, but are not limited to, the following:

If a claim is brought against the estate (e,g., a third party claiming a certain estate asset belongs to them)
If a claim needs to be brought against a beneficiary or third party on behalf of the estate (e.g., beneficiary is suspected of elder abuse)
If executors or administrators need to defend themselves against a claim (e.g., mismanaging assets, stealing)

Estate disputes can arise in a variety of contexts. Sometimes, to resolve the dispute, litigation will be necessary.

What Should Executors Do in the Event of a Will Contest?

A person named as an executor in a will does not have a duty to defend against a will contest until they have been formally appointed by the court. Once the executor or administrator has been appointed, they have a duty to defend the will against attack.

Before the will has been admitted to probate, the person named as executor, like any interested party, may have standing to file a will contest if they are a person interested in the estate.

In the context of challenging a will, executor attorneys can help executors with:

Bringing a will contest on behalf of the estate
Defending a will contest on behalf of the estate
Determining whether or not to participate in the will contest

Is a Beneficiary Petitioning to Have You Removed or Surcharged?

If a beneficiary suspects an executor or administrator of the estate to have engaged in misconduct of any kind, it is well within their rights to petition the court to have the executor or administrator removed and surcharged – especially if said executor or administrator’s actions resulted in damage to the estate.

If the beneficiary’s claim is proven, not only can the executor or administrator be held personally liable for returning lost property and paying damages, but they may also be required to pay the opposing side’s attorney’s fees and costs.

Mistakes can be costly for executors and administrators, which is why it’s crucial for them to have an administrator and executor lawyer on their side.

Contact Us

Learn More About Our Administrator and Executor Services

If you are an executor or administrator of an estate, you would be doing yourself a disservice if you don’t get in touch with our experienced administrator and executor attorneys.

Using Keystone’s comprehensive administrator and executor services, you will be amazed at how easy your job becomes. Reach out to our administrator and executor lawyers now to request a free consultation.