Harville-Stein Law Offices, LLC

 

HARVILLE-STEIN LAW OFFICES, LLC
2159 S. MCKENZIE STREET, #250
FOLEY, AL 36535
Phone: 251.979.6641


 

SERVING BALDWIN COUNTY, ALABAMA


 

How Does being the Personal Representative under a Will Differ from an Administrator?

By Dean D. Stein, CMA


Administrator is the title given to a person who is appointed to administer a deceased's estate where the deceased person, known as the decedent, left no Last Will and Testament, or Will. By comparison, if a Will is being probated, the person appointed to handle the estate is called the Executor, for the masculine, Executrix for the feminine, or just Personal Representative, as we prefer and will now call them. But the differences certainly don't stop there. An Administrator, to take actions like selling the personal property of a decedent, such as coins, furniture, cars, etc., or the real property, that is, a house or land or other real estate, must first have the court's prior approval and follow certain rules on publishing the sale, including the place and time it is to be held. In addition, an Administrator will have to post a “bond”. The bond is posted with the court, to safeguard the beneficiaries of the estate, from loss arising from potential wrongdoing of the Administrator. A Personal Representative may or may not have to post bond, based on the specific provisions of the Will. In the case of an Administrator, they must also conduct and submit to the court an “inventory” of the decedent's estate within a certain time period. Again, the Personal Representative may or may not have to submit an inventory to the court, depending on the provisions of the Will. An Administrator's rights with regard to administering the estate are somewhat limited, and are enumerated in the law. A Personal Representative's rights can be relatively expansive, and are provided for by the Will, and where the Will is silent, supplemented by the law. 

Both Administrators and Personal Representatives have a fiduciary duty. The general standard for them both is that they must manage the Estate's assets with “the care of a prudent person dealing with the property of another.” Who becomes the Administrator is decided by the court, with a priority given to individuals related to the decedent, and certain entities, spelled out by the law. On the other hand, who becomes the Personal Representative is usually determined by the decedent, based on who was named in the Will as the decedent's first choice, successor, and so forth. An Administrator operates under “Letters of Administration” issued by the probate court. A Personal Representative operates under “Letters Testamentary”, also issued by the probate court. An Administrator is entitled to reasonable compensation for their services, as may appear to the court to be fair based on the consideration of several factors, not to exceed 2 ˝% of the value of all property received and under the possession and control of the Administrator and 2 ˝% of all disbursements. Likewise, the Personal Representative is entitled to compensation, unless expressly provided otherwise by the Will. If the estate process goes well, both the Administrator and Personal Representative can conclude the process and close the estate by consent of all the heirs, provided all heirs are adults of sound mind. If any heirs are not of sound mind, including heirs who are minor children, then a final accounting and settlement will have to be filed with the court for approval.

Whether you are going to serve as an Administrator or Personal Representative, you should make sure you clearly understand your duties and obligations, your responsibility to the court, and the solemn task on which you are about to embark. 

This article is generally based on Alabama law, the law of your state can vary widely. This is not intended to constitute, nor should be taken by you as legal advice and is not intended and does not create an attorney/client relationship.

Dean Stein, CMA, is an attorney who has a Masters degree in business and is a Certified Management Accountant (CMA).

 

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