Fiduciary powers, or powers to act on behalf of another, may be granted to both executors and trustees under a will. Under most wills, an executor, also referred to as a personal representative, will be named in the will and appointed by the court upon probate to fulfill its terms. If the will also establishes a testamentary trust, or a trust created by the will, then a trustee will also be designated to fulfill the terms of the trust.
An executor is generally a person the decedent trusted to handle her affairs after death. It is the executor’s duty to pay debts of the estate and to take control of all assets of the decedent and see that they are dispensed according to the terms of her will. The executor is responsible for delivering specific items to specific persons named in the will. The executor is also responsible for properly funding any trust established under the will for the benefit of the decedent’s surviving spouse or any minor children. Funding the trust may mean transferring monies into a trust account or even conveying real estate to the trust through an executor’s or personal representative’s deed. The executor and trustee under a will may be and often are the same person.
When the executor’s duties to the trust end, then the trustee’s duties begin. The trustee takes the assets conveyed to the trust from the estate and begins managing the trust according to the terms established by the will or a separate trust agreement. Most trust agreements provide for the assets that are held by the trust and any income derived from those assets to be used to care for the beneficiaries of the trust.
Once the assets of the estate have been dispersed according to the will’s terms, then the executor may petition the court for final settlement. If the court is satisfied that all debts have been paid and all estate assets are properly conveyed, then a final decree may be entered or signed by the court closing the estate and discharging the executor from his duties.
The trustee’s duties do not end with the closing of the estate. So long as the trust exists and has assets, the trustee will be under a fiduciary duty to act in the best interests of the beneficiaries under the trust. The trustee may choose to terminate his duties as trustee by his resignation, or the beneficiaries may petition the court to remove the trustee if he is considered negligent in his duties or permitting waste of trust property. Upon the trustee’s resignation or removal, a successor trustee named in the will or a separate trust agreement or a successor trustee appointed by the court will become the new trustee.