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.
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.
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.
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.
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.
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.
|Method of Appointment||Executors of estates are named by decedents in their wills.||Administrators of estates are appointed by the court when a decedent dies without having executed a valid will or where an existing will does not name an executor.|
|Making Distributions||When making distributions, executors must distribute the assets to the named beneficiaries of the will, so long as the will is valid.||If the decedent died intestate (without a will), administrators must distribute the decedent’s assets to the decedent’s heirs, who are identified by intestate succession statutes.|
|Place of Residence||Executors can reside practically anywhere.||The court is unlikely to appoint an administrator of the estate who lives outside the United States.|
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:
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.
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.
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:
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.
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.
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:
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:
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.
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
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.
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:
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.
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.
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:
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.
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:
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:
Estate disputes can arise in a variety of contexts. Sometimes, to resolve the dispute, litigation will be necessary.
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:
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.