Executor, Adminitrator, Representative?

What does the personal representative do?

By Richard Magnone © 1999, 2010

The Illinois Probate Act at 755 ILCS 5/1-2.15 defines a "Representative" as follows: "Representative includes executor, administrator, administrator to collect, standby guardinan, guardian and temporary guardian." In a deceased person's estate, only the terms executor, administrator and administrator to collect apply. (An administrator to collect is a representative named by the Probate Court based upon the petition of a party interested in the probate action. The Adminitrator to collect is charged with preventing waste, loss or embezzelment of probate estate property.)

Generally, the two main types of personal representatives in a probate situation are executors and administrators.

Executor Versus Administrator

The executor and administrator hold a similar role and, in many cases, the roles are indistinguishable from one another. There are, however, a few differences worth mentioning.

First, the requirement of appointing either an executor or an administrator depends upon whether or not the deceased person left a will. In the event that a deceased person leaves a "will", that document likely appoints an executor to represent the probate estate. In the event that a person dies without a will, aka intestate, the court will appoint an administrator , nominated by some interested party, to represent the probate estate.

Second, the powers and duties of an executor and administrator may differ. The administrator's power comes entirely from that power bestowed upon it by the Probate Act. An executor, however, while enjoying many statutory powers may also be granted additional powers or limitations by the terms of a will. Most wills, absent some reason to the contrary, provide executors with the broadest powers possible.

A third difference and one related to the difference above is the requirement of the posting of a surety bond by the representative. The Probate Code, at 755 ILCS 5/12-2, requries that every indiviual representative shall take and file an oath that the representative will faithfully discharge the representative's duties and a bond binding the representative to do so. The bond takes the form of a surety bond acquired from an insurance company. The probate code also requires that the amount of the bond be at least one and one half times the value of the probate estate's personal estate (that is, all non real estate property). Surety bonds can be expensive. All administrators (that is, those people who become representatives when there is no will) are required to post a bond. However, not all executors must do so. The probate code provides that bond or surety may be expressly waived in a will. In those instances where a will waives a bond or surety, executors need not procure a bond from an insurance company. This is one of the key advantagtes of a will over intestate succession.

The Estate Representative's Job

In the most simple of terms, the representative is charged with "probating" the estate of the deceased person. The probate process consists of following the procedure necessary to carry out the distribution of the property owned by the deceased person. Once officially named by the probate court, the representative receives "letters of office" which allow the representative to stand in the shoes of the deceased person and act legally on behalf of the probate estate. The duties of a representative include, but are not limited to the following:

-Entering and proving a will, if one exists, before the probate court;
-Gathering all of the probate assets (that is, those assets which are not jointly held or which do not have a designated beneficiary) of the deceased person;
-Holding, investing or managing probate assets, including setting up bank or brokerage accounts;
-Pursuing any actions at low to which the decedent might have been entitled to (such as wrongful death lawsuits);
-Maintaining and, if necessary, operating, those assets (such as a business or rental property);
-Preparing income and estate tax returns (both state and federal) for the deceased person's final year of life and for the estate during the process of administration and paying those taxes from estate funds;
-Notifying all known and reasonably ascertainable creditors of an estate
-Defending against frivolous or unfounded claims against the estate;
-Paying valid claims against the estate from estate funds;
-Preparing inventories and accountings of estate funds;
-Distributing the estate to those entitled to take distributions from it.

The probate process must all be performed within the procedures required by the Probate Act. In return for acting as representative (unless a will dictates otherwise), the representatvie may charge the estate "reasonable fees" for the job done on behalf of the estae.

The job of representative may be a daunting. Luckily for reluctant representatives, a nominated administrator or named executor may decline to act as representative or resign the post upon a petition to the probate court.  All estate representatives should avail themselves of competent legal counsel to guide them through the sometime complex and confusing process of post-death asset administration.

What if I am Asked to Act as Representative?

A great deal of responsibility is placed upon the shoulders of an estate representative.  The job potentially requires dealing with various heirs, legatees, creditors, claimants, businesses and judges. Every scenario is different. You should contact an attorney to help guide you through the duties of being a probate estate representative. An attorney can help you. 

How to Get Started

We provide assistance to administrators and executors in most aspects of the probate process.  If you would like to consult with us about any aspect of a probate estate, please contact us.  To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122.  We are generally willing to have a short (5 to 15 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you. Face to face Initial consultations are by appointment only and a consultation fee is generally charged.