Executor or Administrator? What’s the difference?

by Joseph Candito on October 15, 2011

What is the difference between the Administrator of an Estate and an Executor of an Estate? It’s a distinction you should be aware of whether you will be the person appointed to take charge of the estate, or if you are the person drafting your Last Will and Testament.

The short answer is that an Executor (Executrix if the person appointed is a female) is the person whom the decedent named in the Will to take charge of the estate. (In probate law, the person who died is referred to as the decedent.) The Executor is responsible for wrapping up the decedent’s affairs and distributing the assets to, or for the benefit of, the persons name in the Will (beneficiaries).

An Administrator (Administratrix if female) is the person in charge of the estate when someone dies without a Last Will and Testament.

Both the Administrator and Executor are subject to the jurisdiction of the Probate Court. Both have similar duties. Both are responsible for identifying, gathering and obtaining values of assets that belong to the deceased person and that will be included in his/her estate. They will be responsible for filing tax returns for the decedent and the estate, for paying estate debts, handling business for the person who died, and distributing the assets to the beneficiaries or the heirs (if there is no will).

Administrators and Executors are fiduciaries. A fiduciary is a person who has been charged (or given) the highest degree of trust and responsibility that can be imposed by law. From the Latin term fiduciarius which literally means a person who is “holding trust”. It is proper to speak of a fiduciary duty or fiduciary relationship to another or for another’s property. Ohio Probate law has a highly technical definition. The Ohio Revised Code defines a fiduciary as ”… any person…appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another..” Full text here ORC 2109.01.

So if they are both fiduciaries and are both charged with performing the same duties for the estate, why should I care whether I appoint an Executor in my Last Will and Testament? What is the difference other than an Executor is appointed by the Will and the Administrator is not?

The obvious answer is that you decide who will take charge of your estate. You may love all your children equally, but little Johnny is too easily influenced or intimated by his brothers and sisters to be able to handle any disputes that may arise after your death. Besides, you don’t want to put him in such a stressful position if he still finishing medical school should the grim reaper show up early. And Johnny lives in California now. That would be a long trek to Batavia, Ohio. He would not make a good Executor.

The most significant difference between an Executor and an Administrator is that an Administrator’s authority is limited to what the law provides in the statutes. See ORC 2113. The Executor has all the same legal authority PLUS additional powers that may be granted in the Last Will and Testament.

There are two special powers that can save the estate time and money. The Last Will and Testament can give the Executor the power to sell real estate at private or public sales without having to go through a length “land sales case”.  This is a case that is filed separately from the Probate case and has a life of its own. See ORC 2127. This procedure is cumbersome, time consuming and can be expensive to the estate.

And the Last Will and Testament can allow the Executor to serve without having to post a “bond”.  A bond is required to protect the estate against fraud or negligence. When the decedent names a person he or she trust as Executor, it makes sense to “waive” the requirement of posting the bond. (Although the decedent can choose to leave the requirement for bond in place).  The Administrator must post bond unless otherwise ordered by the Probate Court. ORC 2109.04(A)(1) states that, “(A)(1) Unless otherwise provided by law, every fiduciary, prior to the issuance of the fiduciary’s letters as provided by section 2109.02 of the Revised Code, shall file in the probate court in which the letters are to be issued a bond with a penal sum in such amount as may be fixed by the court, but in no event less than double the probable value of the personal estate and of the annual real estate rentals which will come into such person’s hands as a fiduciary.” (my emphasis added). The Administrator would have to qualify for and obatin a surety is required to guarantee the Administrator’s proper handling of the estate assets, the Administrator has a difficult choice: get a corporate surety bond (which can be expensive, and counts against the Administrator’s credit score which could affect plans for getting a mortgage), get a friend or relative to act as surety, or decline to serve.

Avoiding unnecessary cost, delays and procedures in the administration of your estate is an important consideration in deciding whether to draft a Last Will and Testament. And when drafting your Last Will and Testament, you want to give adequate consideration as to whom to appoint as Executor to take charge of your estate. You can’t take it with you, but you might as well leave as much as you can for those you love.

For more information contact me. www.candito.com

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