An executor, sometimes called a personal representative, is the person who is named in a will, appointed by the court, and responsible for probating the will and settling the estate.
Typically, a petition of probate must be filed with the court for an executor to be appointed. If the person agrees to be the executor, and no one objects, the court will issue letters of testamentary. These letters authorize the executor to gather the estate’s assets, sell assets, pay creditors, and open an estate bank account. An executor is ultimately responsible for distributing the estate assets to the heirs in accordance with the terms of the will. If there is no will, then your executor will distribute assets in accordance with California state law. Distribution of estate assets, in either case, happens only after debts, taxes, and administration expenses are paid.
Trustee’s and Successor Trustee’s Duties
A trustee, on the other hand, is an individual or trust company named in a trust document and is in charge of the assets that are held in a trust. Assets held in a living trust avoid probate, which means court supervision is not required. In most revocable living trusts, the trust creator acts as the trustee and can make changes including moving assets to and from the trust, changing its beneficiaries, or even revoking the trust entirely if it is no longer necessary. Once the trustee is no longer able to manage his or her affairs, because of cognitive impairment or another injury, the successor trustee will step in and handle the trust management. Upon the trustmaker’s death, the successor trustee will distribute the assets held in the trust to the trust’s beneficiaries and subsequently close down the trust. So this role is similar to an executor, but without the burden of probate.
You do have the option of having more than one trustee or executor. It is often better to name a sequence of trustees or executors, however, rather than joint ones. The executor and successor trustee can be different people, but do not have to be. There are advantages and disadvantages to each setup. Be sure to speak with your trusted advisor about the nuances and legal strategies important to consider when selecting your executor and successor trustee.
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