The Difference Between an Executor and an Administrator
31 May 2017
Executors and Administrators are responsible for administering the Estate of someone who has died. They are known collectively as Personal Representatives, so how are they different?
An Executor is chosen to deal with the Estate by the person who has died, and is appointed by being named in the Will. By making a Will and appointing an Executor, the person making the Will can name someone he/she trusts and feels is suitable to carry out their wishes. If there is something out of the ordinary to deal with in the Estate, special Executors can be appointed to deal with that part of the Estate. For example, someone with specialist knowledge might be appointed to deal with a business.
The Executor’s authority is taken from the Will, and comes into effect immediately on the death of the person who made the Will. In theory, the Executor can exercise all their powers from the date of death. He/she is able to sue and be sued, and he can deal with the deceased’s property, although would not be able to sell it without a Grant of Probate. The Executor will almost always need to apply to the Probate Court for a Grant of Probate which gives Court approval for him/her to act.
More than one person can be named as an Executor in a Will, but a maximum of four Executors can take out a Grant of Probate. If there is more than one Executor named in the Will, they do not all have to act. Any one or more of the named Executors can apply for a Grant of Probate, and if only one Executor is named on the Grant of Probate, he/she will be fully authorised to act alone. Notice has to be served on any Executors named in the Will who are not applying for Probate, before the Grant of Probate will be issued to just one of them.
An Administrator is appointed to deal with an Estate where there is either an intestacy (meaning someone has died without making a Will) or if there is a Will but there is either no Executor appointed, or no Executor alive and willing to act. In these circumstances, an Administrator has to be appointed by the Court to deal with the Estate administration.
If there is no Will, a Grant of Letters of Administration will be issued by the Probate Registry to one or more of the people entitled to benefit from the Estate under the Rules of Intestacy. Where there is more than one person entitled to benefit, any combination of those people can apply for a Grant of Letters of Administration. However, no more than four people can apply, and they must all be over 18 and capable of acting.
Where there is more than one person entitled, and if the beneficiaries cannot agree on who should take out the Grant of Letters of Administration, there may be a race for the Grant. When this happens the Court will issue the Grant to the first person to apply. It is not necessary to inform the other beneficiaries on intestacy that one person intends to apply for the Grant.
Where there is a minor beneficiary under the age of 18, a sole Administrator cannot be appointed. If the minor is the sole beneficiary, or one of only two beneficiaries, the person applying for the Grant will need to appoint a Co-Administrator.
If there is a Will but there is no Executor appointed or able to act, an Administrator will be granted Letters of Administration (with Will Annexed). In this case, the Administrator will be someone with an interest in the Estate. This will usually be a beneficiary, but could be a creditor.
An Administrator is appointed by the Court, so has no authority to deal with the Estate until Letters of Administration have been granted. Their authority is not backdated to the date of death.
Duties of a Personal Representative
Once an Executor or Administrator has been successfully appointed, their duties as Personal Representative will be to collect in the assets of the Estate, pay the debts and liabilities, and distribute any balance to the beneficiaries. Their powers and responsibilities are set out in law, but an Executor may have their powers extended by the terms of the Will.
In summary, Executors and Administrators are appointed to do the same job, but their differences lie in the way in which they are appointed. Executors have authority from the date of death and their powers are taken from the Will, but Administrators have no authority until they have been granted Letters of Administration by the Court.