Executor vs. Administrator: What's the Difference?

Wills are an essential component of estate planning. When created correctly, they designate who the beneficiaries of the deceased are, how the deceased’s assets will be distributed to those beneficiaries, and how creditors and tax collectors should be paid.

Additionally, the author of a will needs to put someone in charge of handling these duties. Legally, this designation is known as the executor. Once the probate court (the court in charge of validating and overseeing the estate administration process) validates the deceased’s will, this executor takes over.

But what happens if an author of a will fails to designate an executor or if the will is contested and deemed invalid? Who is put in charge of handling these necessary duties?

That’s when the probate court names an estate administrator. Let our New Jersey estate administration attorneys help you look at executor vs. administrator and examine some key differences and what you should do to avoid New Jersey probate mistakes.

Why Might the Court Have to Name an Estate Administrator?

Several scenarios may require the probate court to name an estate administrator to handle the deceased’s assets.

Criteria for naming an estate administrator vary from state to state, but the estate administrator is usually a surviving spouse, adult child, parent, or other relative, or beneficiary of the deceased.

Scenario #1: When Someone Dies Without a Will

A person who passes away without having created a valid will, dies “intestate”. This means that the deceased’s assets pass under the laws of the deceased’s State, and the probate court names an administrator to handle the asset distributions, debt payments, and tax filings on behalf of the deceased.

Scenario #2: The Will Is Contested & Invalidated

Another reason a court may have to appoint an administrator is that the deceased’s will is contested and invalidated by the probate court.

Regulations and criteria surrounding the invalidation of a will vary from state to state. In New Jersey, you may only contest a will if you’re a designated current beneficiary of the deceased or if you were in a previous version of the will, or if you are an interested heir-at-law.

There are several legal grounds on which a will can be contested in New Jersey that must be proven in court:

• ‍Coercion: If you suspect the writer of the will was coerced into including or excluding something.‍
• Forgery or fraud: If you suspect that the will was forged or that the writer of the will was intentionally misled in one way or another. ‍
• Incapacity: If you suspect that the writer of the will was not of sound mind and body when creating the will, and‍
• Failure to conform to legal standards: If you suspect the writer of the will did not comply with New Jersey’s state laws surrounding the legal creation of a will (two witnesses present during its creation who have also signed the document).

These are some of the grounds to contest a will, but if the will is contested and legally invalidated by the court, all or part of the will may be thrown out, and the court may have to name an estate administrator to manage the estate assets.

Scenario #3: The Named Executor Cannot Serve

Finally, the court may have to name an estate administrator if the named executor in the will cannot fulfill their duties. This may be for several reasons, for instance, if the named executor is predeceased, or if the named executor is incapacitated when probate takes effect. Although the will may still be valid, and the terms of the will must be fulfilled, the person fulfilling those duties would be an administrator and not an executor.

Key Differences Between Executors and Administrators

One difference between executors and administrators is that administrators must post a fiduciary bond with the court to qualify. This bond promises they will ethically and faithfully execute their duties under the deceased’s will, because there is an element of risk involved in hiring a third party to distribute and manage assets on behalf of someone else. The posting of the fiduciary bond ensures the court that the administrator will not leverage the deceased’s assets for personal gain.

Typically, a decedent’s will provide that the executor may serve without the necessity of bond, which saves the estate the cost of the bond, which can be several thousand dollars, and leaves more money for the beneficiaries.  So it is preferable to have an executor qualify, rather than leaving it to the court to appoint an administrator.

Another difference between an executor and an administrator is the court’s involvement in the administration process.  When an executor qualifies to act over the estate assets, the executor does not need to file an inventory with the court.  When an administrator is fulfilling the duties of an estate administration, he or she must file an inventory of assets with the court and is accountable to the court as to the disbursement and distribution of the assets, so that the administrator can eventually be released from the bond.  An executor is not subject to that requirement

Make Sure Your Assets Are Distributed Properly with BMC Estate Planning

Since much goes into estate planning and will creation, going about it alone may spell the difference between a smooth probate process and a disaster waiting to happen.  Don’t leave your estate administration to chance.  Let the team at Borenstein, McConnell and Calpin help you.

Contact us today to get the proper legal guidance for your estate planning.

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