Administrator vs. Executor in a Probate

by Beverly Bird

Executors and administrators have much of the same job. Each must guide a decedent's estate through the probate process, making sure his creditors receive notification of his death and payment of his debts, and ensure the estate's remaining assets pass to the decedent’s heirs or beneficiaries.The major difference between the two positions is in the way each receives appointment. Both are representatives of the estate and of the court. They’re duty-bound to act in the best interests of the decedent and to follow the letter of the law.

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Appointment

Decedents usually name individuals in their wills to oversee probate of their estates. When a decedent leaves a will, this person is called his “executor.” The executor can submit the will to the court for probate and the court will usually honor the decedent’s wishes, swearing that person into office. If the named executor is incapable of doing the job for some reason, because he suffered a disability since the time the decedent named him, for example, the court must appoint someone else to manage probate instead. An executor can also decline to take the job because he simply doesn't want it. When this occurs, the court will appoint someone to the position and this person is called the estate’s “administrator.’’ The court will also appoint an administrator if the decedent dies without leaving a will that names an executor, or without a will at all. In most states, family members and other interested parties may petition the court, requesting appointment as administrator.

Insurance

In most states, administrators must post bond with the court at the time of their appointment. Bond is a type of insurance policy against any wrongdoing or errors. It ensures that the estate will receive financial compensation if the administrator takes any action that causes it to lose money. In Illinois, the required insurance policy is one and a half times the value of the estate, so it can be pricey. Unlike administrators, executors do not always have to post bond. Most states allow that if the decedent specifically waived this requirement in his will, his will supersedes probate laws mandating it. In most jurisdictions, the estate pays for the executor’s bond, particularly if the will requires it rather than waives it. The estate might also pay for an administrator’s bond, but in some states, the administrator may have to pay for it personally, especially if the estate doesn't have sufficient funds.

Powers

Wills usually allow an executor to take whatever steps are necessary to settle the estate, based on the executor's own judgment. Most wills include clauses permitting the executor to sell assets, when required, to pay off the decedent’s debts. Administrators generally can’t take such action without a judge’s approval. The court monitors administrators' activities much more closely. Both executors and administrators need proof from the court that they’re authorized to act on behalf of the estate in order to deal with creditors, banking institutions and insurance companies. For executors, this authorization is usually called “letters testamentary." Some states, such as Massachusetts, use a different term when authorization is given to administrators, such as “letters of administration.”

Responsibilities

Both executors and administrators must follow specific directives when making bequests from the estate to the decedent’s heirs or beneficiaries. An executor is obligated to follow the terms of the decedent’s will. An administrator must follow his state’s probate code for intestate succession, a prescribed list of relatives who stand in line to inherit when the decedent does not leave a will. In some cases, he may have to find the relatives if they're not immediately known or don't step forward.