Understanding Probate « »
ESTATE TERMINOLOGY
The type of estate and the manner in which it is administered is determined by whether a decedent leaves a valid will. A man or woman who makes or has made a will is known as a testator. A person who dies with a valid will is said to have died testate, while a person who does not have a valid will at the time of death has died intestate.
An executor is a person appointed by the testator in a will to carry out the provisions of the will. An administrator is a person appointed by the probate court to oversee the estate of an intestate decedent.
Executors and administrators act in the capacity of a fiduciary. They must exercise extreme care in the administration of an estate. A number of statutes govern the performance of executor’s and administrator’s duties. Generally, executors and administrators are forbidden from dealing, on behalf of the estate, with themselves and must avoid all opportunities to take advantage of their position as fiduciary for personal gain. Executors and administrators must abide by the orders of the probate court and comply with the requirements set forth in the statutes.
An executor’s or administrator’s powers and the question of bonding differ between intestate and testate estates. In intestate estates, an administrator’s powers are limited to those given by statute. An administrator generally must furnish a bond and must distribute a decedent’s estate according to the state law statute of descent and distribution.
Testate estates may involve more flexibility and additional duties on the part of the executor. A testator may, if he or she desires, request the omission of a surety bond on the part of the executor. A testator may authorize certain activities for the executor; may designate a guardian for minor children or disabled persons under the testator’s care; and, within legal limits, may direct the distribution of his or her property after debts, administrative expenses, and taxes are paid.
An executor or administrator who originally is appointed to administer an estate but does not complete the administration for some reason will be replaced by a successor executor.
For purposes of the balance of this memo, we will refer to an estate’s personal representative, executor, or administrator simply as “the representative.”