There is one main difference between an executor vs an administrator. A person is named executor in someone’s will, while a probate court appoints someone as the estate administrator.
Whether someone is the executor of a will or the administrator of an estate, their duty is the same. They both act as the personal representative of the decedent in shepherding the deceased person’s estate through the probate process.
The Appointment of an Executor vs Administrator
Most persons’ last will and testament names someone as executor. The probate court will almost always appoint the named person as executor. If that person cannot serve, then the court will appoint the alternate executor named in the will.
If neither the person named executor or alternate executor are willing and able to serve, then the probate court cannot appoint anyone as executor of a will.
When a person dies without a valid will, the probate court has to appoint an administrator of the estate. This also the case when a will does not name an executor, or if the named executors cannot serve. Therefore, it is always a good idea to name at least one executor, and one or two alternate executors, in your own will.
Executor vs Administrator: Who can be appointed?
Who can be an executor?
A person can generally name anyone they please as their executor. They can name a family member, or a girlfriend, boyfriend, partner or trusted advisor. Most anyone is eligible to be named as an executor.
Who can be an administrator?
State law governs and restricts the appointment of an administrator. These laws list the preference for administrators. If more than one person wants to be the administrator, the court is likely to follow the preferences. The order of preference is generally as follows:
- Surviving spouse,
- Children,
- Father or Mother,
- Brothers or Sisters,
- Grandchildren,
- Other family members who are intestate heirs, and
- Creditors of the decedent, or
- Some other interested party.
State probate law also may restrict administrators to residents of the state.
Your preference may be different than the state’s. Maybe you have you have a partner, but the two of you are not married.
Perhaps you would rather have your CPA sister as your personal representative, but she lives out of state.
In those situations you should name an executor of your choice, and a successor executor as well. You do this in your will, as part of your estate planning process.
Key Differences Between Executors vs Administrators
The probate court issues Letters Testamentary to an executor, and appoints an administrator by the grant of Letters of Administration.
An executor distributes the estate assets according to the terms of the will.
An administrator distributes the decedent’s estate according to the laws of intestacy (unless he is an administrator with the will annexed).
Executors can live anywhere, but administrators generally must be residents of the state of the probate proceeding.
Executors can serve without a bond, if the will so specifies. Administrators will generally need to post a fiduciary bond. This is to protect the heirs from a poorly done administrator’s job.
Executors vs Administrators: the Similarities
The role of an executor and the duties of an administrator are similar. They are both charged with the administration of an estate.
Fiduciary duties
They both have a fiduciary duty to the beneficiaries and/or heirs of the deceased individual. This means that everything they do must be done with the best interests of the beneficiaries in mind.
Officers of the Court
Executors and administrators are also officers of the Court. They derive their power from the Court. In order to get this power, and they must file an oath with the Court, promising to carry out their duties according to law.
Same probate process
Executors and administrators have to follow the same estate administration process. They have to:
- file the decedent’s will with the probate court
- notify the beneficiaries and heirs of the death
- give notice to known creditors of the estate
- publish notice to unknown creditors
- identify and collect the assets of the estate
- make an inventory of the estate
- get an appraisal of the estate’s assets
- pay the debts of the estate
- prepare the decedent’s and the estate’s tax returns
- maintain and perhaps sell the estate’s real estate
- take care of and/or sell the estate’s personal property
- distribute the remaining assets to the beneficiaries, and
- to do all this as quickly as reasonably possible
Both Executors and Administrations have to do other things on behalf of the estate. They have to prepare all the legal documents that are necessary for the administration of the estate.
Simple Estate vs Complex Estate
Some estates are simple, and others can be complex and time consuming.
A simple estate may consist of a vehicle, a couple of bank accounts, and some furnishings.
A complex estate may have a house, a vacation home in another state, an ownership share in a business, a herd of livestock, a collections of classic motorcycles, and a couple of dozen firearms.
The more complex estates may require the help of other professionals, such as accountants, financial advisors, stock brokers, real estate brokers, appraisers, etc.
The probate laws allow executors and administrators to hire such professionals. If the provisions of the will allow, then executors can do this without a court order. Administrators have to ask permission from the court. However, a court will almost always grant permission, as long as the professionals’ fees are commercially reasonable.
Depending on the size and complexity of the estate, an executor or administrator may also choose to hire a law firm to assist him or her. Probate attorneys can provide the legal advice that give most every administrator or executor of an estate quite a bit of peace of mind.
Compensation Executors and Administrators
Finally, both executors and administrators are entitled to reasonable compensation for their services. The compensation is usually in the form of a commission, which is a percentage of the appraised value of the estate.
Executor vs Administrator FAQ
What is the difference between an Executor vs Administrator?
An executor is named in a will, while an administrator is selected by the probate court.
Which is better, Executor vs Administrator?
Neither is better, because they both have to do the same work.
Does an executor or administrator have to accept the appointment?
No. A person named executor of a will can decline the appointment. A person entitled to be an administrator can also decline to act. Finally, both executors and administrators can resign their appointment, if they are no longer willing or able to serve.
Who can be an executor vs who can be an administrator?
Anyone named in a will can be an executor. Only a person approved by the court can be an administrator.
Can I make myself the executor of a family member’s estate?
No. Only a person named in the will can be an executor. However, if a close family member died without a will, you may ask the court to appoint you as the administrator.
Does an executor vs administrator get to distribute the estate as they think is best?
No. An executor distributes the assets according to the terms of a will. An administrator distributes assets according to the state’s laws of intestate succession.
Do executors and administrators get paid?
Yes. Executors and administrators are entitled to compensation. The fees for administrators are set by state law. These fees are the same for executors, unless the will provides otherwise. In either case, the court must approve the fees prior to payment.
Executor vs Administrator: When is neither needed?
Most states have some some simplified probate process when a deceased person’s estate meets certain criteria. These rarely apply to a large estate, because the criteria is generally the value of the estate. Therefore, they may not apply to even a simple estate, if it is valuable enough.
The two more common process are probate by affidavit and probate by summary distribution.
Probate by Affidavit
Probate by affidavit generally only applies when the estate of a decedent contains only personal property. This would be cars, bank accounts, and things like that. Furthermore, the property would have to be valued at less than a certain amount. As an example, in Wyoming, the value of the property must be less than $200,000.00.
A probate by affidavit, or similar procedure, often does not require any court filing or involvement. Therefore, there is no need to appoint an executor or a personal representative
However, when the assets of an estate include real property, some sort court involvement is almost always necessary. This is because every state has a compelling interest in keeping title to real property clear.
Pro Tip – Just because a person owned real property when they died, does not mean that the decedent’s estate includes that property. If the property was owned in joint tenancy, the property would have passed to the other owners by operation of law. In addition, the property could be subject to a Ladybird Deed or a Transfer on Death Deed. Those deeds would also take the property out of a probate estate.
Summary Distribution
If the value of the estate is lower than a certain threshold, than a form of Summary Distribution may be appropriate.
These summary distribution proceedings are not formal probates, and the probate court does not appoint an executor or an administrator. They provide some notice to creditors so that the liabilities of the estate of the deceased can be paid, and then decedent’s assets are distributed according to a court order.
Summary of Executor vs Administrator differences
The biggest difference between the two is that an executor is named in the will of a deceased person, while a court chooses an administrator.
Another important difference is that anyone can named as an executor, but state law controls who is appointed as an administrator.
Otherwise, there is not much difference between an executor vs administrator.
They both have to distribute a deceased person’s estate. Regardless of the size of the estate, they both act under the supervision of special courts, which are called probate courts.
By Steve Harton, an estate planning and probate attorney licensed in Florida, Utah and Wyoming. Steve serves clients in all three states from his office in Rock Springs, Wyoming. If you need some legal advice about probate, please schedule a consultation!