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Are you thinking about who might administer your estate when you are gone? Do you know the difference between an executor vs an administrator of the estate? If you are thinking about appointing an executor or if you have just been informed that you will have to serve as one, this article will be of great help to you. We will explain in detail what an executor is and how it differs from the administrator of the estate. 

At Ortiz & Ortiz we have experienced estate planning attorneys who have been serving the community for over 30 years in both English and Spanish. If you are looking for advice in defining who will administer your estate when you are gone, contact us and let us know your case.

The difference between an executor vs an administrator of will in New York

When a person dies with an estate, their property and assets will be distributed and administered according to their last will. Such a last wish may or may not have been left expressly in a will. If there is no will, all assets and debts the person may have will be handled according to state law

New York intestacy law

In our article about New York intestacy laws you will learn all about what happens if you die without a valid will.

It is in this probate process that words like “executor” and “administrator of the estate” become relevant. Sound familiar? If the answer is yes, we are on the right track. 

  • The executor and administrator of the estate have the same function in practice: to administer the estate of the deceased person. 
  • The difference between the two terms lies only in the manner in which that person came to perform that function. 

There are other subtle differences from an executor vs an administrator of the estate that we will tell you about in this article – read on!

  • Executor of the estate : is a trusted person of the deceased and is appointed by the deceased in their last will and testament. 
  • Administrator of the estate: when the will fails or there is no will, i.e. the deceased person did not name an executor of their trust, it is the probate court of the county who will appoint an administrator of the estate. 

On the other hand, their main similarity is that both must act on behalf of the decedent’s interests, whether appointed by the decedent or not. In that sense, both the executor and the administrator of the estate have a fiduciary duty. Review our article on what happens when there is a breach of fiduciary duty. 

Next, let’s take a closer look at what an executor vs an administrator of the estate are. What are the advantages and disadvantages of each, as well as the requirements to fulfill the function they are mandated to perform. 

Note: If you are thinking about who will administer your property and assets when you are gone, you may be interested in our article on testate versus intestate succession and the difference between executor and trustee. Read in detail what each involves and what differentiates them. This will help you make the best choice in deciding who will administer your estate after you are gone.

What is an executor?

An executor of an estate is the person who is in charge of everything that is left when a person dies. In other words, they are the one who must administer and act on behalf of the deceased’s estate. This estate can be goods, assets, properties, debts, investments, among others. In general, the executor is a person of trust, but it can also be a company, an institution or other organization. 

Functions and duties of the executor: 

The executor will not act on their own. All their duties will go step by step following the will that the deceased person left expressly in the will. However, the duties and obligations of the executor will vary depending on the size of the decedent’s estate and the number of heirs.

difference between executor and administrator of estate in new york
  • Obtain a copy of the decedent’s will. 
  • Determine who inherits what property or asset.
  • File the will with the probate court.
  • Notify all banks, government agencies such as social security and pension funds, life insurance policies, creditors and lenders of the decedent’s death.
  • Determine if a probate process will be necessary. This refers to the process of “probating” before assets can be distributed.
  • If probate is necessary, file a petition to be appointed executor. 
  • Appear in court on behalf of the decedent’s estate. 
  • Make a list of all property and assets to be administered. This item may also require appraisals and valuations if necessary.
  • In the meantime, as you begin to carry out the decedent’s will, you will need to protect and manage the property and assets. Along those lines, make sure that the decedent’s property is held until it can be passed to the heirs. 
  • Cash out all bank accounts, mutual funds, bonds and stocks held by the decedent. All money from the estate should be placed in a new separate account where incoming and outgoing funds can be managed. 
  • Depending on the decedent’s will, you may have to sell assets and property to give the cash to the beneficiaries named in the will. 
  • You will also need to worry about the debts left by the deceased. Be it student loans, credit cards, medical debts, taxes, among others. 

In addition to these mandatory duties, the executor must also deal with the frustrations of some heirs who did not get what they wanted. As well, the executor will have to talk to creditors and tell them what happened. 

Note: You might be interested in our article when someone dies who is responsible for their debts and what happens to the joint account with a deceased parent. You may also be interested to read: How to find out if you have debts in the United States.

How long does the process of being an executor take?

The process of carrying out the decedent’s will can take months or even years. As you can see from the above points, there is a lot to take care of, so you need to be patient and take it slow. 

Note: When you are in the process of drafting your last will and testament, and deciding what will happen to each of your property and assets, it will be time to choose who will administer your estate when you are gone. If you are thinking about appointing an executor, read more about the New York letters of administration

When does the executor begin to act on behalf of the decedent’s estate?

That the deceased person names an executor of succession in their will is not enough for the named executor to begin acting on behalf of the estate. There is a process that must take place: 

  • Go through the probate process if necessary. 
  • Appear in county court.
  • Receive a document called “Letters Testamentary.” Check out our dedicated article to find out what these letters testamentary are and what their functions are.
  • With the Letters Testamentary in hand, the executor will be able to approach banks and other institutions to begin administering the decedent’s estate.

Requirements to be an executor

There are really no specific requirements to be an executor. Anyone can be in charge of carrying out the decedent’s will. It is not even necessary that it be a family member, but only a person or institution that the deceased trusts. 

Some points to keep in mind: 

  • It may not be a relative. It can even be an institution, a bank, a company, a business, among other options.
  • The law does not require the executor to have knowledge in law, finance, accounting or any other specialty. 
  • Some qualities such as honesty and the ability to handle the estate according to the will of the deceased will be very welcome. 
  • Being an executor is quite a lot of work. It can be a trusted friend or family member. If you are thinking about naming someone as executor in your will, ask yourself the question: Do I trust this person? If the answer is yes, you already have an executor. If not, think of someone you trust completely. 

When might the appointed executor be ineligible to serve?

  • If they are a non-domiciliary alien.
  • A convicted felon.
  • Having declared bankruptcy or having numerous judgments could also be considered grounds for disqualification.

Can one resign as executor?

Appointing someone as an executor is an act of trust. However, the person named may not feel capable, willing or have the time to fulfill the role. So, is it possible to resign from being an executor? Of course you can. 

Being named executor does not mean that the person is obligated to fulfill that task. 

In case you do not want to be an executor, you can resign by signing a letter of resignation. 

That is when the designated successor executor becomes very important, since that person will be the one to assume the role of main executor.

What is an administrator of the estate? 

The administrator of the estate is usually appointed by the court. Their function is to be the one who carries out the succession of a person who has died without a will. When is an administrator of the estate appointed? When the person who dies does not have a will or if the will was considered invalid. 

Functions and duties of the administrator of the estate:

  • Make an inventory of all property, goods, debts and assets of the deceased. 
  • Notify all banks, government agencies such as social security and pension funds, life insurance policies, creditors and lenders of the decedent’s death.
  • Pay outstanding debts to creditors, taxes, among others.
  • Distribute remaining proceeds in accordance with state law. 
  • Account for and account for how the estate was distributed. 

How does the administrator distribute the decedent’s estate?

  • While the executor does so according to the will the decedent left, the administrator of the estate must distribute the property and assets according to the laws of intestate succession. This means that it will be distributed among the closest statutory relatives of the deceased. 

Another important point to consider regarding the administrator of the estate is that the Court may require the administrator to post a bond to guarantee the security of the estate assets. 

Who can be appointed administrator of the estate?

When a person does not voluntarily express in their will who they wants to take charge of administering their estate, it is the court who will do such work. 

The order of preference to become estate administrator is:

  • Spouse.
  • Children.
  • Grandchildren.
  • Father or mother.
  • Siblings.

In some cases the court may request information about the relationship to the decedent. Specifically, it may request an affidavit of relationship.  

What if no relative can be an administrator of the estate?

The public administrator of the county where the decedent lived becomes the administrator of the decedent’s estate.

In the event that the administrator of the estate is a cousin, nephew, niece, or other distant relative of the decedent, the public administrator of the county will also be involved. 

Is the executor or administrator of the estate entitled to remuneration?

Generally yes. Most states allow for commissions or some type of compensation for being the executor or administrator of a deceased person’s estate. The specific amount for services rendered is set by law and varies from state to state. 

administrator of estate vs executor

Some points to keep in mind: 

  • The compensation that the executor or administrator of the estate received is taxable income and must be reported on the income taxes of those performing such duties. 
  • On the other hand, if the executor or administrator of the estate receives funds as beneficiary those will not be considered taxable income. 
  • In the case of the executor, who was appointed in the will of the deceased person, it could be stated in the will itself whether there is an indemnity or not.

Similarities and differences between the executor vs the administrator of the estate

Similarities:

There are many more things that the administrator vs the executor share in common. 

  1. Same functions: It is worth mentioning that there are some states where the distinction is no longer even made since the functions that the executor and the administrator of the estate perform are the same.
  2. Fiduciary duty: In both cases there is a fiduciary duty, i.e., whoever administers the decedent’s assets must do so for the benefit of the decedent and not for their own interests. 
  3. Time: Being the executor or administrator of the estate can be a lengthy process, which can take time. 
  4. Preliminary executor: In the situation where someone objects to the appointment of the executor and the court is awaiting additional documents, the court may issue preliminary letters testamentary. These letters could give a person the power to take over the estate assets while the process of appointing an executor or administrator of the estate is in process. The preliminary executor comes into the picture when the estate assets must be taken care of.
  5. Notice to all heirs and potential heirs: The executor and administrator must duly notify the affected persons of their appointment.

Differences:

There are also differences between the executor vs the administrator worth considering:

  1. How it is appointed: The executor is appointed by the decedent in their will. Meanwhile, the administrator of the estate is appointed by a court since the decedent did not leave a will or, if they did, did not name anyone as administrator of their property and assets. 
  2. There are more controls on the administrator of the estate than on the executor: When a person appears as executor in front of the court, the court only has to check and confirm that they are indeed named in the decedent’s will. However, when a person applies to be administrator of a deceased person’s estate, the court may require some additional information and documents. 
  3. Parentage check: The administrator of the estate may be asked by the court to prove their relationship. That is, to show how they are related to the decedent. It should also make it clear that they are the closest living relative and, as such, the right person to administer the deceased person’s estate. In that case, it may be possible that whoever is applying to be the administrator of the estate may need approval from other relatives who are related to the deceased.
  4. Providing a bond: Most executors are not required to post a bond. This is because wills generally contain a section specifying such a matter. In the case of administrators of estates, a bond is likely to be required by the court. This acts as insurance against theft or mismanagement of the estate.

Note: If you are thinking about planning for your future, also read about what role a power of attorney in New York might play in this. Also, read about the revocable living trust in New York and the irrevocable trust in New York.

Attorneys experienced in probate proceedings and appointment of an executor or administrator of an estate

Now you know much more about the differences between executor vs administrator. Planning for the future and, above all, for when one is no longer around, can generate a lot of anxiety. Expressing one’s last wishes in a will where goods, assets, properties and the entire estate are distributed, is a difficult decision. But even more complicated can be the decision of who will be the person who will administer your estate and distribute it among your heirs. 

At Ortiz & Ortiz, we have experienced NY probate lawyers who can assist you in this process:

  • Guide you in the drafting of the will itself.
  • Advise you on the best way to administer your assets and distribute them after you are gone. 
  • Guide you through the will process when you are the one administering it. 

Our offices are located in Queens and Manhattan. In addition, we can help you through a virtual consultation in any of the five boroughs of New York. Contact us and let us know your case today!