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Friday, February 11, 2022

Crucial differences between Executor of a Will & Trustee

An executor of a will administers the will of a deceased person, and a trustee manages the living trust or testamentary trust of a person. The living trust will need to be managed during the lifetime of the person who set up the trust and afterward. A testamentary trust doesn’t exist during the lifetime of the person who created it through their will. A testamentary trust will need to be administered after the testator (the person who created the will) dies.

These things are the bare-bones distinguishing features of what people do when serving as an executor or trustee, but there are many more crucial differences between executor of a will and trustee. A Florida estate planning attorney can explain in more detail about executors and trustees.

The Responsibilities of the Executor of a Will

In an uncomplicated estate, the executor must file the will with the probate court and request “letters of administration” from the judge to get the authority to handle the estate. With those letters, the executor can officially act on behalf of the deceased person’s estate, marshal the assets, and file an inventory with the court.

The executor will need to prepare the tax returns for the estate and for the last year of the decedent’s life. Known and likely creditors of the deceased person, like the doctor and hospital that provided healthcare services during the last illness, will have to get contacted for their final bills. The executor evaluates all outstanding bills and pays the debts of the estate out of the estate assets. Upon approval by the probate judge, the executor can distribute the remaining resources to the heirs and beneficiaries.

Sometimes, being an executor of a will is more complicated, for example:

  • When someone contests the will.
  • When there are multiple wills.
  • When previously unknown relatives surface.
  • When the surviving spouse makes a claim on the estate
  • When there are high-dollar assets, like real property, that need to get sold.
  • When there are assets that need appraisals, like art collections, business interests, or intellectual property.

Whether the estate is relatively simple or more involved, the executor does not have to do all the work alone. Many people hire an estate administration attorney to do the heavy lifting. The lawyer fees get paid from the estate assets.

The Responsibilities of a Trustee

There are multiple kinds of trusts, and each can carry different obligations.

When the Settlor Serves as the Trustee During His Lifetime

Typically, the person who sets up the living trust, the settlor, serves as the initial trustee to retain control over his assets. There should be at least one successor trustee to manage the trust assets after the settlor dies or if the settlor becomes incapacitated during his lifetime.

Having Someone Else Manage Your Living Trust During Your Lifetime

Florida law does not force you to serve as the trustee of your living trust. Some people set up living trusts because they do not want to be bothered with financial management. Let’s say that you want to serve a tour of duty in the Peace Corps, sail around the world, or bicycle across entire continents. You could set up a living trust that nominates someone else to manage your financial matters.

Handling the Duties of a Trustee After the Settlor Dies

You should name at least one person to serve as trustee after your death. That person will need to follow the terms of the trust, gather the assets of the estate, pay the valid debts of the estate, and distribute the remaining assets. Usually, a living trust does not have to go through probate, so the terms of your trust can remain private.

How Testamentary Trusts Work

Some people include provisions in their will that set up a testamentary trust, contingent on a specific event happening. For example, a will might set aside money for the care and education of the testator’s children if they are still minors at the time of the parent’s death.

This is merely an overview of the differences between executors and trustees. A Florida estate planning attorney can help you create a will or trust tailored to your needs and goals. Contact our office today for a free consultation.


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The Law Office of Jeffrey A. Herzog, P.A. assists clients in Florida, including North Pinellas County, Palm Harbor, Trinity, West Pasco County, and the surrounding areas.



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