A person can wear many hats when it comes to estate planning. Depending on your role, you can be expected to perform specific duties and may even be penalized for nonperformance of those duties. Two such roles are that of an Executor and an Administrator. While a single person can and sometimes does perform both duties, in some instances, the two roles can be very different.
If you have been tasked with performing as either the Executor or the Administrator of an estate, it is in your best interest to learn how best to perform your duties. An experienced estate planning attorney can help you differentiate between the two and assist you in your responsibilities. Top-rated Long Island estate planning attorney Seth Schlessel of Schlessel Law, PLLC, has the necessary skills and legal knowledge to guide you through the duties of being an Executor or an Administrator. Call Schlessel Law, PLLC today at (516) 574-9630 to schedule a free consultation.
Executor vs Administrator
In New York, when an individual (referred to as a decedent) passes away and leaves behind an estate, the responsibility of managing their assets and liabilities, settling debts with creditors, and distributing the remaining assets to beneficiaries is not directly handled by the court. Instead, this process is entrusted to an appointed executor or administrator.
An executor is an individual or entity chosen by the person who has passed away in their final will and testament to manage these obligations. This role can be fulfilled by a person, a trust company, or a bank. It is also possible to have multiple executors appointed simultaneously, working collaboratively to administer the estate.
When an individual passes away without a will or if the will does not explicitly name an executor, the court will designate an administrator to assume responsibility of managing the estate. New York law establishes a priority order for different relatives to serve as administrators of the estate.
Both executors and administrators have the duty of identifying and creating an inventory of the decedent’s property, settling any outstanding taxes or debts, validating claims from creditors, and ultimately distributing the remaining assets to the rightful beneficiaries.
Understanding the differences between executors and administrators is crucial for a smooth estate planning process. At Schlessel Law, PLLC, our Long Island estate planning attorneys can provide invaluable insights into the roles and responsibilities of executors and administrators. Whether it’s executing a will, managing assets, or facilitating probate proceedings, their knowledge can equip you with the information needed to make well-informed choices. Schedule a consultation today for a comprehensive estate plan that reflects your wishes.
Definitions and How They Are Appointed
An Executor can be a person, a bank, or a trust company named in a deceased person’s Will who is assigned the responsibility of seeing the provisions of the Will to fruition. More than one Executor can be assigned, especially in cases of a larger estate.
When a person dies without a Will or if the decedent’s Will did not name an Executor for their estate, the court will assign an Administrator to take care of the decedent’s affairs.
Both estate Executors and Administrators are entitled to payment depending on the size of the estate. When the Executor of an estate is the decedent’s friend or family member, it is not uncommon to see Executors waive their right to their commission. However, banks or trust companies will understandably seek compensation for their services and sometimes decline to serve their duty unless the estate is large enough to meet the bank or trust company’s commission requirements.
While an Executor is assigned through the Will, the appointment of an Administrator can be a more complicated process. The Surrogate’s Court will need to be provided with a Kinship Affidavit which the court can use to determine kin who can take on the role of Administrator. Family members of the decedent can also file to become an Administrator provided that they submit all the necessary documents establishing kinship and are approved by the court.
The Surrogate’s Court will give out official Letters of Administration to qualified heirs of the decedent and appoint them with the authority to collect and give out assets in the decedent’s estate according to the law.
If the estate has less than $50,000 of personal property, a Voluntary Administration process may be filed. If the next of kin of the decedent cannot be established or the remaining relations are distant, the county’s Public Administrator will be assigned to take on the task of being the estate’s Administrator.
The equivalent of Letters of Administration for an Executor would be a Letters Testamentary document. Letters Testamentary gives an Executor the authority to act on behalf of the decedent’s estate. It is important to note that Executors cannot be compelled into carrying out the functions of an Executor even by the court while kin of the deceased may petition the court to act as the estate’s Administrator if there is no Will.
The basic requirements for those who would like to act in the capacity of an Executor or an Administrator are as follows:
- At least 18 years of age
- Of sound mind – not declared incapacitated by a court
- With no felony convictions
New York probate court may also deny the assignment of a potential Executor, regardless if they have been named in the decedent’s Will, if they are found to be unqualified. An Executor can be disqualified if they have a history of substance abuse, dishonesty, or financial mismanagement. The court may also deny the appointment of an executor who is unable to read and write in English.
Duties and Responsibilities
Both an Executor and an Administrator have a fiduciary responsibility to the estate. This means that they have a duty to keep the best interests of the estate at all times, even when it means putting the estate above their own best interest.
In some cases, the Surrogate’s Court may require that the Administrator issue a bond. Executors, being appointed by the decedent, are often exempted from this bond as they are usually vetted by the decedent. The bond is meant to act as insurance that provides security to the estate in case an appointed Administrator does not take care of the estate. The bond will be used to reimburse any losses the estate incurs as a result of any mismanagement by an appointed Administrator. Compared to an Administrator’s bond, an Executor assigned through a Will is expected to perform their duties keeping in mind the goodwill they had with the decedent.
This is not to say that Executors may be free to do as they please due to the lack of the bond. Beneficiaries who have a reasonable belief that an Executor or Administrator is not acting according to the best interests of the estate may file a complaint against the fiduciary with the Surrogate’s Court.
A key difference also exists between Executors and Administrators concerning which standard they are expected to perform under. Executors are required to settle the estate according to the wishes of the decedent, as dictated by the Will while Administrators, including those assigned by the Surrogate’s Court, must settle the estate according to New York’s intestacy laws.
Executors and Administrators can both seek the assistance of a Long Island probate attorney to help them perform their duties. The attorney’s lawyer fees can be charged to the estate. The responsibilities of an estate’s fiduciary during probate are to:
- Create an inventory and appraise the assets of the decedent’s estate
- Pay the taxes and bills of the estate
- Validate any claims made by creditors and pay any debts owed by the estate
- Transfer property to beneficiaries and heirs according to the Will or New York’s intestacy laws.
Being an Executor or Administrator of an estate is no easy task. It requires considerable time and effort to perform the fiduciary duties involved. Estate fiduciaries are also open to strict scrutiny and are liable to be challenged in court if the beneficiaries find due cause to file a complaint.
If you have decided to take on the management of a loved one’s estate, either by being named as the Executor through a Will or by petitioning or being appointed by the court, having the help of an experienced Long Island probate attorney can be beneficial.
| Aspect | Executor | Administrator |
|---|---|---|
| Appointment and Compensation | Named in Will; Payment based on estate size. | Assigned by court; Payment based on estate size. |
| Process of Appointment and Authority | Appointment through Will; Authority follows decedent’s wishes. | Appointment involves court; Authority according to NY’s intestacy laws. |
| Qualifications and Disqualification | Must be 18+, of sound mind, no felony; Disqualification possible due to unqualified factors. | Court-approved kin; Must meet qualifications; Disqualification possible due to unqualified factors. |
| Duties and Responsibilities | Fiduciary duty to estate’s best interests; Follows Will. | Fiduciary duty to estate’s best interests; Follows NY’s intestacy laws. |
| Legal Assistance and Responsibilities | Seek probate attorney; Lawyer fees charged to estate; Inventory assets, pay taxes, validate claims, transfer property. | Seek probate attorney; Lawyer fees charged to estate; Inventory assets, pay taxes, validate claims, transfer property. |
What is the Disadvantage of an Executor?
Serving as an executor of an estate is not without its challenges. One of the primary disadvantages of being an executor is the significant time commitment required. Executors are responsible for a variety of tasks, including distributing assets, paying off debts, and managing paperwork. This can be especially burdensome for those who have their own personal and professional responsibilities.
Another major drawback is the emotional strain involved. Dealing with the death of a loved one is already difficult, and the added pressure of fulfilling the duties of an executor can exacerbate stress and grief. Executors often find themselves having to navigate complex family dynamics and potential conflicts among beneficiaries, which can be emotionally taxing.
Furthermore, executors are exposed to potential legal liability. They are legally obligated to act in the best interests of the beneficiaries and manage the estate according to the relevant laws. Failure to comply with these legal requirements can lead to legal liability. For instance, if an executor mishandles the estate’s finances or fails to pay taxes, they could be held responsible, potentially facing legal consequences.
While the role can provide personal satisfaction and sometimes compensation, the responsibilities involved make it important to carefully consider whether one is prepared to handle the demands and potential risks associated with being an executor. Consulting an experienced estate planning attorney can help alleviate the burden and more efficiently handle the responsibilities of an executor. Contact Schlessel Law today for a consultation.
Seth Schlessel, a skilled Long Island probate attorney, has assisted both Executors and Administrators alike in the process of probate and in performing their fiduciary duties. Our team of Long Island probate lawyers at Schlessel Law, PLLC, provides quality legal counsel and can also aid you in collecting the necessary documents to manage the estate. To schedule a free consultation with top-rated Long Island probate attorney Seth Schlessel, contact Schlessel Law, PLLC today at (516) 574-9630.
