Can the Same Person Be an Executor & Trustee?

By Phil M. Fowler

The same person can generally serve as both estate executor and trustee so long as the appointed individual meets the independent legal capacity requirements to act as an executor and as trustee. In fact, appointing the same individual to both positions is a fairly common estate planning technique. Concurrent service as trustee and executor can help streamline the probate and estate administration process.

Executor

An executor is the person appointed to carry out the probate of a person's estate after that person dies. Probate proceeds according to the instructions set forth in the deceased person's valid will or, if the deceased had no valid will, according to general provisions outlined in state law. A will can identify a candidate to serve as executor, but ultimately a probate judge must assign the probate executor. Most often the probate judge appoints the person designated in the will, unless the judge determines the person is incapable. For example, if the person has become mentally incapacitated since the will was created, the judge will appoint a different executor.

Trustee

The trustor, meaning the person who creates a trust, identifies the person who will serve as trustee. A probate judge does not have to ratify a trustee's appointment. Generally, any mentally competent adult is qualified to serve as trustee. In some states, a trustee must take a formal oath and post a bond.

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Estate Plan

Trusts and wills are separate estate planning forms that, together, carry out a cohesive estate plan. Similarly, executors and trustees are separate legal roles that work together to carry out overlapping estate planning goals. The trustee manages any property held in the trust while the executor manages and closes out the estate, including distributing property bequeathed under the will in probate. No state or federal law prohibits the same qualified person from serving as both trustee and executor of the same estate.

Acceptance Required

Judges never force anybody to serve as either an executor or trustee. Instead, a person appointed to serve as either executor or trustee may decline the appointment. It is always a good idea, therefore, to consult with the individual who will be appointed as both trustee and executor before the time of appointment comes, just to make sure the person is willing. If the person accepts one appointment and denies the other, this could create an unanticipated hiccup in the estate plan. One benefit to dual service is the appointed person can receive separate compensation for her services as both trustee and executor.

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Can an Executor of an Estate Distribute Gifts From a Trust?
 

References

Related articles

What Are the Qualifications for an Executor for an Estate?

Executors play a vital role in ensuring that your property passes according to your wishes after death. It is the job of the executor to collect your property, pay your outstanding debts and distribute your remaining assets through a court-supervised process known as probate. Although states have some basic legal requirements for executors, other qualities, such as financial responsibility and trustworthiness, are often considered most important by will makers when choosing whom to appoint for this important task.

How to Remove an Executor or Trustee for California Probate

If an executor or trustee fails to perform her various duties, California law allows an interested party to petition the probate court to remove and replace her with someone else. Several types of breach or mismanagement can lead to the removal of an executor or trustee, but the petitioner will need to be able to support his assertions before the court.

Duties of a Trust Administrator

A trust administrator takes care of trust assets for the benefit of the beneficiaries. The trust administrator may be either an individual or an organization such as a bank or specialist trust company. The trust deed sets out the specific duties of the trust administrator. In addition, the law imposes certain more general duties on anyone who administers a trust. If he fails to comply with his legal duties, the trust administrator could potentially become personally liable for any losses.

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