Who Administers an Estate? Is it the Trustee? The Executor? What’s the Difference?

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“My elderly father is a US resident in California. We, the daughters/beneficiaries of his will, currently reside elsewhere in the world. He has suggested setting up a cousin based in California as “trustee” to handle his affairs until such time as we become involved, due to physical distance. What rights, if any, could the cousin have over the administration of the will with this title (trustee)? The cousin is unlikely to be a beneficiary, but is she necessarily the best person? Who takes care of bank accounts, rent, utility accounts, etc. which may need settling? Could you perhaps suggest a set-up for my father to put in place now whereupon the will is fairly administrated without being eroded? I had thought this person was called an executor?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

You are confusing two different legal instruments – one being a will, and the other being a trust. A will is an instrument which dictates what is to be done with someone’s assets (known as their “estate”) after they die. You are correct that the person who administers someone’s estate after they die is called an “executor”.

A trust is an instrument which sets up what you may think of as a legal entity, to which someone’s assets are transferred, often while they are still alive. It is helpful to imagine a trust as a corporation (although that is not the case, this is just for illustration purposes), and the trustee as the manager of the corporation, in this case managing your father’s assets. A trust may continue after the death of the person who set it up, or there may be provisions which provide that the estate gets executed as per a will upon their death. Or there may be some combination of the two.

As you may have guessed by now, wills and trusts is an extremely complex area of law (most especially trusts), but they are also very useful instruments, and most estate planning attorneys will tell you that a trust is absolutely the way to go.

The bottom line is that if he hasn’t, your father should consult with a trusts and estate attorney about this issue (although I’m betting that he already has), and that he should pick someone whom he trusts implicitly to be his trustee. That may be the cousin, it may not. It should be someone he knows will carry out his wishes (not yours) in administering his estate, both prior to and after his death.

Recommended reading (click on the picture for details):
Plan Your Estate

Recommended reading (click on the picture for details):
Make Your Own Living Trust

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Author: Anne P. Mitchell, Esq.

Anne P. Mitchell, Esq. is a noted family law expert, Internet law expert, and Professor of Law at Lincoln Law School of San Jose. She is the author of "Surviving Divorce: the Single Father's Guide" and "The Email Deliverability Handbook"

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