The main difference between these two fiduciaries is the way how they will become the representatives of an estate and how they might carry out such responsibility. An executor is a person who is appointed in a Will by the testator and who will be responsible for representing the estate after the testator passes away and the will has been admitted to probate. On the other hand, if the deceased passed away without a Will, the person representing the estate will be called an administrator and will be appointed by the New York Surrogate’s Court.
Although, here in New York we still differentiate such positions, many states like Florida, have eliminated the difference between executor and administrator, naming such fiduciaries as “personal representative” of the estate. Nonetheless, both fiduciaries will have to be responsible for paying all the debts in the name of the deceased and thereafter make a distribution of the estate’s remaining assets for the beneficiaries/ heirs.
In the case you were appointed as an executor in a Will here are some of your duties: Initiate the probate proceeding with the New York surrogate’s court by presenting an original copy of the Will and a certified copy of the death certificate and any other supporting documents required by the court. Notify all the heirs, beneficiaries, and creditors that the estate is being probated. Collect of all of the deceased’s assets and keep an accurate record of them; pay all the debts of the estate and thereafter distribute the assets to the beneficiaries named in the Will. It’s important to mention that the testator might give specific instructions in the Will on how the executor should carry some of these duties. For example, the testator can direct the executor to pay any debts that the estate might have, by selling a specific property.
On the contrary, to be appointed as an administrator of an estate, it will be necessary to follow the rules of priority established by the state of New York. The order of preference for family members would be as follows: surviving spouse, adult children, adult grandchildren, parents, siblings. In many cases, some of the family members who have priority will be unable to serve for some reason and someone else might be appointed. The interested party shall initiate the proceeding by presenting a petition to the New York Surrogate’s court with an original copy of the death certificate, preliminary information of the deceased’s assets, and deceased’s heirs. As occurs in the probate proceeding, the administrator will also have to notify all the interested parties, collect all the estate’s assets, pay all the debts and thereafter make a distribution of the estate’s remaining assets to the heirs. All of those duties must be carried out under intestacy rules, considering that there is no Will to provide a “guidance” to the fiduciary.
Whether you are to be appointed as an executor or administrator of an estate here in New York, it’s always important to discuss with an experienced probate attorney what are your responsibilities and duties as such as well the nuances of your case. While many situations might be straightforward, others will not and an attorney will guide you in the most efficient way.
Talita is a senior counsel of the Estates & Trusts team at CPL. Her practice focuses on advising high net worth clients and financial institutions in wealth and estate planning related to U.S. and foreign assets.