Personal Representative, Executor, and a Trustee
The Roles are Similar but there are some Major Differences
This is a process that involves many layers and people. It’s best to get advice from an attorney to help make the right choice in these situations. Then ask a realtor to help you with the process of selling the property.
The law is full of terms and titles that can seem mystifying to the average person w’s just trying to plan his estate. They can be even more difficult for individuals who are faced with stepping in and managing the estate of someone who is recently deceased.
"Personal representative", "executor", and "trustee" are some of the titles you’ll encounter. Some of the distinctions are minor, and some are more significant. Personal representatives, executors, and trustees are all fiduciaries - a term that means they are entrusted to deal with the affairs of others ethically and fairly - but they can play very different roles in your estate plan.
The Personal Representative
These terms are often used interchangeably with good reason. Executors and administrators are both personal representatives. Think of personal representative as an umbrella term for these other two roles. The difference between them is whether you did or did not leave a will.
The Role of an Executor
A personal representative is appointed by a judge to oversee the administration of probate estate. It can be a person, an institution such as a bank or trust company, or a combination of both. If the decedent left a last will and testament it most likely names the individual they wanted to handle this responsibility. In most cases the judge will honor the decedent's wishes and appoint this person. When the personal representative is nominated to the position in a will, he’s commonly called the executor of the estate.
The Role of an Administrator
Even if the decedent did not leave a will, his estate must be probated, and someone must oversee this process. To some extent, state law dictates who the judge can appoint to serve as the estate’s personal representative.
For example, some states require that the surviving spouse should serve as a personal representative unless they have pre-deceased the decedent, or they doesn’t want to take on the job. If they wave this rate, the judge can move down the statutory list of other individuals who can serve.
When a personal representative is appointed to handle the estate of someone who did not leave a will, they're typically called an administrator. They must pass the decedent’s property to their surviving kin according to state law for lack of a will stating who the decedent wanted to receive it.
The Role of a Trustee
A trustee is an individual named by the person who creates a trust – called a trusted maker or grantor - as a part of the estate plan. The trustee oversees the day-to-day management of the property that’s been placed into the trust.
The grantor and trustee are typically the same people when the trust is revocable. The grantor/trustee can undo the trust and take the property back from it, as they see fit. If they should become incapacitated so they can no longer handle their own affairs, the trustee documents they created will typically appoint someone as successor trustee.
The successor trustee would step in and take over management of the trust. They would do the same when the grantor/trustee dies, usually distributing the trust property to the to its beneficiaries and closing it down. Assets held in trust do not have to pass through probate and the court is not typically involved.
An irrevocable trust is one where the grantor creates it, then steps aside. They appoint someone else to act as trustee, and they can’t later change their mind or take the property back. In this case, the standing trustee would simply continue to manage the trust shut the testator die or become incapacitated. As with a personal representative, a trustee can be a person, an institution, or a combination of both.