EXECUTOR VS TRUSTEE, WHO REALLY HAS THE POWER?
When administering one’s property after death, it is very important to know your designations and roles in the administration. Often, a person will create two separate documents to deal with their estate: a Will and a Trust. Both will come with different roles for the people in charge of handling them, and it is necessary to know where the roles differ and if any take priority in a dispute.
The first document to discuss is a Trust. A Trust is a legal document/entity created during your life meant to hold your property during your life and distribute it upon your death. The person managing a trust is known as a Trustee. You will be the initial Trustee of a Trust that you create unless you specifically designate otherwise. After you pass away, whoever you have selected as your successor Trustee will be able to act and handle the Trust. A Trustee’s authority does not need to be approved, overseen, or confirmed by a Court; a Trust is a private document allowing the Trustee to administer any and all property held within it.
The next document is your Will. A Will is a set of instructions you leave behind for someone to adhere to when you pass away. A Will is meant to encompass any property not held by your trust or property you neglected to place into your Trust during life. Sometimes a Will may contain instructions such as “all property not held by my trust should be awarded to my trust.” The administrator of a Will and the person handling it is known as the Executor of the Will. An Executor, unlike a Trustee, requires the Court to award them the authority to act and must open probate in order to do so.
What is important to understand is that just because you are the Trustee of a Trust does not mean you are automatically the Executor of a person’s Will. It is not unheard of for a deceased to have a different Trustee and Executor for their estate documents. If that is the case, the Executor and the Trustee may have to take on different tasks based on how the property is held. If, for example, a piece of real estate was deeded to a Trust, but another piece of real estate had never been deeded to said trust it would be considered held by the estate of the deceased. In that scenario, the Trustee would be free to immediately begin handling the property held by the Trust; however, the Executor would need to first open probate to be able to handle the property held within the Estate, and it would be the Executor in charge of that property, not the Trustee.
Neither the Executor nor the Trustee has superior authority over the other unless the topic is clearly within the purview of either the Trust or the Will. Disputes related to the wishes of the deceased or conflicts between the Will and the Trust generally need to be ruled upon by a Judge. To avoid forcing your estate into court disputes, you must have a clear understanding of your Trustee and Executor, and it is usually advisable to avoid splitting those roles.
If you are thinking of setting up your estate, please consider calling the Law Office of Andrew Szocka P.C. at 815-455-8430 or emailing us at info@szocka.com. Our team of experienced estate attorneys can help you navigate the estate planning process and make sure everything you set up is as you wish it to be.