Entering the world of Wills, Trusts and probate can be confusing. One of the first questions people often ask is: what is the difference between a Trustee and an Executor? To put it simply, a Trustee is the person who oversees a Trust, while an Executor is the person who oversees a Will, which often involves going to probate court.
A major difference between a Trustee and an Executor is the amount of authority and discretion each position has. Both Trustees and Executors are legally required to follow the terms of the Trust or Will and make distributions to the Beneficiaries in accordance with the Trust or Will terms. If the decedent only had a Will, the Executor must file the Will in Probate Court with a Petition to Administer the Estate (also called Petition for Probate). Information on how to file a Petition for Probate is available here.
Probate is the process in which the court oversees the valuation and distribution of the estate assets. After the Executor files the Will and Petition for Probate; the Executor must notify the Beneficiaries and creditors about the probate hearing, request authority from the court to open probate and to handle/sell the estate assets (called Letters of Administration), submit an Inventory and Appraisal to notify the court and Beneficiaries of the value of the estate assets, and ultimately seek court-ordered approval of the distribution of those assets.
Trustees, on the other hand, do not usually need to go to court. Trusts are designed to be administered outside of court. The Trustee can make distributions to the beneficiaries without seeking court approval. The trustee must still follow the terms of the Trust, but Trustees have greater authority to use their discretion in administering the Trust without seeking approval of the court prior to making distributions.
The bottom line: Both Trustees and Executors have similar duties and responsibilities. Both positions are required to gather information about the value of the assets, provide valuation information to the beneficiaries, and make distributions to the beneficiaries in accordance with the terms of the Trust or Will. Trustees have the advantage of being able to operate without court approval. However, Trustees occasionally abuse their discretion. Bad Trustees without court supervision can throw a wrench in the distribution of assets by refusing to make distributions, misappropriating Trust funds, and other violations of the Trustee’s duties. Beneficiaries who are dealing with an abusive Trustee should contact an experienced Trust and Estate litigation attorney immediately. A bad Trustee only makes matters worse over time. The faster you act, the faster you can stop the damage.