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

{ 18 comments… read them below or add one }

Pren Strock December 13, 2011 at 10:22 am

Effective info. Hope to find more wonderful posts in the future.

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Jane Brown September 7, 2013 at 6:09 pm

Your Some one told me that the executor for an Ohio will had to be from Ohio. Is there any truth to this? – Jane p.s. Thank you for the clearness of the information that you have provided.

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Joseph Candito September 8, 2013 at 5:59 pm

Dear Jane.

That is an excellent question. The Executor does NOT have to be a resident of the State of Ohio, but the Administrator (the fiduciary that is appointed when there is no will) must be a resident of the State of Ohio. There are five requirements to be appointed Executor:
1.The person must be at least 18 years of age;
2.The person must be competent;
3.The must be bonded by a private insurance company;
4.The must have an excellent credit rating (in order to be bonded);
5.The cannot have a criminal record (in order to be bonded).

For Administrator to be appointed, the same five requirements must be met AND the person must be a resident of Ohio. See Ohio Revised Code 2113.06

If the Executor is an out-of-state resident, the Court will usually order that the probate assets shall not be removed from the State of Ohio until the administration of the estate is complete.

For more information contact me. http://www.candito.com

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Fran Tintelnot September 20, 2013 at 8:26 am

I am sorry, I guess I didn’t read far enough about the bond, so I know the answer now. Thanks.

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Joseph Candito September 27, 2013 at 7:45 pm

Good question.

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susaveverkan October 13, 2013 at 6:20 pm

my sister was the admimistror of my mom will the lawyer have nothing in writing of how much money my mom had or anything my mom died on march 13 2013 the case was closed a week later i know how much money i was suppose to get my other sister got her but my sister is with holding mine how can i get it

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Joseph Candito October 21, 2013 at 12:16 am

If there were any assets in the probate estate, they would have been identified in the Inventory that is required to be filed by the Administrator. The Inventory must identify each asset and the value of the asset. As an heir, you should have received notice of the Inventory. If there were claims to be paid, you would see them listed on the final Fiduciary Account that must be filed before an estate can be closed. The final account lists all receipts and distributions by the estate. You can review these filings directly with the Clerk of Court for the Probate Court in your County. If the estate was closed a week after it was “opened”, then my guess is that there was no Administration of your mother’s estate. There would be no “Administrator” appointed. If there was a Last Will and Testament, then the attorney may have filed the Will for “record only”.

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paula cornwell November 6, 2013 at 3:51 am

my mother passed away my lawyer ask me if I had a executor and I said no, they had one to call me ,he went to court with me to appoint me as administratrix of my mom estate .he didn’t send me anything with his fee’s or charges on them ,but my lawyer gave him a 2500.oo retainer ,hes used all but 450.00 of it. I don’t understand all the charges he said their normal.he does updates review,like letters he write to me he has some one write it 45.00 reviews it and finalize it 48.00 review revise 16.00 then edit and finalize 36.00 just one letter so letters from him cost a lot my mother s case hasn’t be settler with the other lawyers yet.how can I find out without hiring another lawyer if these are right fees and was he suppose to give me a contract or paper on what he charges..i’m be so upset cause I really don’t know how to find out .and I wish I would of hired my own instead of my lawyers getting him.. my lawyers already charge me 45% for the lawsuit…thank you for any advise

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Joseph Candito November 14, 2013 at 7:46 am

Dear Paula:

All fees paid in the administration of the estate are subject to the approval of the probate court. The fees are usually not approved by the court until there is an account filed with the estate. It is usually the final account when fees are presented, though an application for fees can be submitted before then. The fees have to be reasonable and appropriate. Attorneys usually charge on an hourly basis for all work performed or on a contingency (percentage) basis. The fees should be spelled out in a written fee agreement. If there is a concern about fees, you should always first discuss the matter with the attorney with whom you are working. This is always the best policy to clarify any misunderstanding. If the fees seems excessive to you or outside what you agreed to pay, you may want to contact your local bar association and express your concerns. Most probate courts have local rules that present a guideline of what is normally deemed to be reasonable fees in an estate. Go to the probate court (or online, if available) and get a copy of the guidelines. Some courts like Hamilton County have online calculators. See here and here.

I hope this helps.

Joseph Candito
http://www.candito.com

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Overseer with a executor December 27, 2013 at 5:19 pm

Estate worth millions has excutor who wants to name his own price for pay for running corporation, plus hire and fire employees of family bussines. Refuse to let family on property plus family will be fired. Can he name his own price for his wages, fire all of us, and spend money at his will with no input from hiers? All hiers r concern that there will be no money left after he pays his so call expenses for working at bussiness and other unforseen expenses. Hiers want to have some kind of approval to said expenses and inventory, ( take pics of equipment,etc ) has there been a court case simalar to this case and can we do anything to protect this estate?

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Joseph Candito December 28, 2013 at 8:20 pm

Dear Overseer:

If there is an executor, then the powers are defined in the decedent’s Last Will and Testament that has been admitted to Probate. Any interested party has four months to contest the validity of a Will. The executor is a fiduciary for the estate and must use his best efforts to preserve the estate for the benefit of the named beneficiaries. All compensation paid to a fiduciary is subject to the Probate Court’s jurisdiction. If any interested party has concerns about the propriety of the actions of the fiduciary, he or she can file objections and request a hearing before the Court. But that being said, if the fiduciary is acting properly, family members do not have the right to second guess his or her decisions. By naming the executor as his fiduciary, the decedent is telling the court (and everyone else) that this is the person he trusts to make the decisions affecting the estate. The executor has the duty to make sure the debts of the estate are paid prior to any distributions being made. I recommend that you discuss the specifics of your concerns with a probate attorney in the county in which the Will has been admitted. You should not post specifics online. If there is a conflict of interest and/or the executor is “self-dealing”, the executor can be removed by the Court.

Joseph Candito
Attorney at Law
http://www.candito.com

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Dean McAdams April 3, 2014 at 12:32 pm

Thank you for the excellent definition of the difference between executor of the estate and administrator of the estate. I am teaching myself probate litigation to synergize my civil litigation paralegal career.

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Sandi April 10, 2014 at 10:09 pm

My Mother passed March 2014. I am the oldest daughter and was named the executrix of her will. I have two sisters both younger. My Mother has a very small estate, a Condo, a life policy (25,000.00)with the estate as the beneficiary, and only a small equity loan debt. My Mothers will stated that I did not have to be bonded. I filed the paperwork with Probate and I received a letter stating that I needed a $75000.00 corporate surety bond. Does this make since to you?? She and I both live in NH.

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Joseph Candito April 11, 2014 at 8:35 pm

Dear Sandi:

No that does not make sense. If the will was properly admitted to probate and you were named executrix, the bond should not be required IF waived by the testator in the Will. I recommend you discuss this matter with a local attorney in your State and county.

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Shannon April 12, 2014 at 11:17 pm

If the owner of a property dies and the daughter makes the grandmother the administrator. Then the grandmother who is married dies without any mention of the property in a will. What happens to the property?

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Joseph Candito May 3, 2014 at 3:02 pm

Dear Shannon:

If grandmother is the executor, that does not mean that the property will be hers unless she is also the beneficiary of that property. If the executor (grandmother) dies before the estate is completed or before mother dies, then the next named executor takes over.

Joseph Candito
http://www.candito.com

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alan winstanley April 14, 2014 at 9:44 pm

I wish to know what happens if NO will and NO letter’s have been left ,what happens to the deceased’s estate then? as has happened with a relative of ours.

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Joseph Candito May 3, 2014 at 2:58 pm

Dear Alan:

If their is no Will, then the estate property will be distributed by the state statute (laws) of Descent and Distribution. This usually follows a line of Consanguinity or “blood relations” subject to the rights of the surviving spouse, if any. This gets very complication if some of the blood relative were alive at the time of the decedent’s death but died thereafter. The blood relative alive at the time of the decedents death are still entitled to their share of the estate and the heirs of the blood relatives can step in their place.

It is important for someone in the family to open the estate. Otherwise, nothing will happen and property may be lost to creditors or to the State. If there is no Will, then someone closest to the decedent will need to apply to become the Administrator of the estate.

Joseph Candito
http://www.candito.com

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