Executor or Administrator of an Estate: What’s the Difference?
- July 1, 2023
- Posted by: admin
- Category: Wills and Estates
Dealing with the affairs of a deceased loved one can be a challenging and emotional process. In Tasmania, the roles of estate executor or administrator play crucial roles in managing the assets and liabilities of a deceased person. The people appointed as executor or administrator are usually the people closest to the person who has passed away. This means dealing with legal and administrative responsibilities while also dealing with the grief of the loss.
So what is an executor or administrator? What are their responsibilities and do they have to take them on? We’ll take you through the basics so that you know where to start.
What is an executor of an estate?
An executor is an individual specifically named in the deceased person’s will to carry out their wishes as outlined in the will.
The duties of an executor will include:
- bringing in or collecting all of the deceased person’s assets;
- identifying and settling outstanding debts and taxes;
- generally managing the entire estate administration process; and
- ensuring that the deceased’s assets are distributed according to their wishes and that beneficiaries receive their entitlements.
The deceased person can name one or more executors in their will, providing them with the legal authority to manage the estate.
What is an administrator of an estate?
On the other hand, an administrator is appointed when a deceased person did not leave a valid will (meaning they passed away ‘intestate’) or when the will does not name an executor or there is no one to act.
In such cases, the Supreme Court of Tasmania will typically appoint an administrator to oversee the distribution of the estate’s assets according to the laws of intestacy.
What are the duties of an administrator?
The administrator’s role is similar to that of an executor, and an administrator’s duties will include:
- Identifying assets
- Paying debts
- Ensuring proper distribution to heirs
For an administrator, these duties must be done following the established legal guidelines instead of the deceased’s specific wishes in a will. Sometimes executors may renounce the appointment and decide not to act. In a situation where there are no executors willing to act then an administrator may need to be appointed by the Court.
What are the key differences between executor and administrator?
While “executor” and “administrator” are often used interchangeably, there are distinct differences that are important when navigating the probate process. Some of the main differences are:
- Executors are nominated in the deceased’s will, while administrators are appointed by the court when there is no will or when the will is deemed invalid. If there is more than one person that wants to be appointed as administrator then the Court will appoint the person who it thinks is the most appropriate, whereas multiple executors can be nominated in a will.
- Executors derive their authority directly from the will, while administrators derive their authority from the court’s appointment. Depending on the assets of the deceased person, the executor may still need to apply to the Court to have their appointment confirmed and this is done by applying for a Grant of Probate.
- Executors must distribute assets as per the deceased’s wishes outlined in the will, whereas Administrators must adhere to the Intestacy Act 2010. This Intestacy Act 2010 sets out how assets will be divided between spouses and family members where the person left no will.
- Executors named in the will usually take priority in managing the estate whereas Administrators are appointed based on their relationship to the deceased and the order of priority established by intestacy laws.
- The process of obtaining court approval for executors or administrators to act is slightly different depending on whether the deceased person left a valid will. For executors of a valid will, they will obtain a Grant of Probate. Where there is no valid will, or no executors that are willing to act, then the person who wishes to act as administrator will need to make an application for Letters of Administration.
I’m an executor or administrator, when should I speak to a lawyer?
The executor or administrator of an estate can instruct a lawyer to assist them with managing the estate at any time. It is very common for people appointed to at least see a lawyer once for advice on the process. Legal fees for managing the estate can generally be taken from the deceased person’s funds as they are a valid expense of estate administration.
How lawyers can help with estate administration:
Lawyers can take on most of the estate organisation or, if preferred, a limited amount of work such as just preparing court documents to apply for a Grant of Probate. Generally speaking, lawyers often assist executors and administrators by:
- Identifying what assets or liabilities the deceased person may have had at the time of their death by contacting all banks, brokers, insurers, superannuation trustees and other entities who may hold money or assets for the deceased person
- Managing estate money by holding their trust account and ensuring all ongoing bills are paid to maintain assets, such as rates or land tax for properties
- Preparing all paperwork needed to apply to the court for a Grant of Probate or Letters of Administration
- Preparing all Land Titles Office paperwork to allow the executor or administrator to take control of properties in order to transfer property to beneficiaries or sell it on the open market.
Understanding the roles of estate executors and administrators is crucial for anyone involved in the management of a deceased person’s estate in Tasmania. While both roles involve similar responsibilities, the key distinctions lie in their appointment, authority, and distribution processes. Whether you’re named as an executor or appointed as an administrator, seeking legal guidance and assistance can help navigate the complexities of estate administration while ensuring compliance with Tasmanian laws.
Contact Advocate Lawyers on 03 6204 9000 to get advice on your situation and how we can assist with making the process as easy as possible.