Serving as executor or administrator of an estate is a challenging task. But first, what are they and what is the difference between an executor and an administrator?
What is an Executor?
An executor is a person or persons whose job it is to administer the estate of a deceased person. The executor is usually someone named in the decedent’s will. A common misconception is that the executor is in a privileged position with regard to receiving assets from the estate, but this is not so. Although Pennsylvania law allows an executor to receive reasonable compensation from the estate for their work as executor, the executor has the same rights to estate assets as anyone else and may or may not be a named beneficiary in the will.
What is the Difference Between an Executor and an Administrator?
The person who manages an estate is either called an executor or an administrator depending on whether the decedent had a will. When the decedent had a will (called dying “testate”), the correct term is executor. When the decedent did not have a will (called dying “intestate”) the correct term is the administrator. Either way, the responsibilities described in the remainder of this article are mostly the same.
Becoming Executor or Administrator
In Pennsylvania, the person wishing to become executor or administrator must submit a petition for letters of administration (if there was no will) or a petition for letters testamentary (if there is a will naming the person as executor) with the register of wills for the county that the decedent lived in at the time of death. If everything is in order (check the website for the applicable county’s register of wills to know what to bring), this usually involves a single trip to the register of wills. If the petition is approved (which it usually is on the spot), you will be sworn in and the paperwork proving your authority to manage the estate will be issued (or prepared and mailed when ready). Having been named executor or administrator, you are off to the races.
Responsibilities of Executor or Administrator
In general, your responsibilities as executor/administrator are to protect and preserve estate assets and manage those assets according to Pennsylvania law. Of course, this is not a very helpful statement because it does not address what protecting and preserving estate assets means, nor does it outline what Pennsylvania law requires or, for that matter, what estate assets even are. Let’s get into it:
What are the Estate Assets?
Estate assets are assets that the deceased owned at the time of their passing, and for which ownership did not change by operation of law due to the death of the deceased. In sum, an estate asset is one which remains in the name of the deceased person after death. Again, this is not a super-helpful description for anyone without a legal background, but it is a good place to start.
To help, here are some examples:
- A house is jointly owned between husband and wife. The wife passes away. The house, although owned in part by the wife just before death, passes automatically and immediately by operation of law to the surviving spouse upon death, and thus is not an estate asset – it never enters the wife’s estate.
- A husband and wife own a joint bank account. The husband passes away. The bank account, although owned in part by the husband just before death, passes automatically and immediately by operation of law to the surviving spouse upon death, and thus is not an estate asset – it never enters the husband’s estate.
- A house is owned by 4 siblings as “tenants in common,” which essentially means that surviving owners do not receive the decedent’s interest automatically upon death. This type of ownership is common when a property is not owned by a married couple, but this is not a hard and fast rule. One of the owners dies. The deceased’s share is an estate asset because it did not automatically go to the remaining co-tenants and instead becomes part of the estate of the deceased person.
- A person dies who was insured under a life insurance policy. The proceeds of the policy go directly to the beneficiaries listed on the policy and not into the estate of the deceased person. So, normally, the proceeds of a life insurance policy are not estate assets. However, if there is no beneficiary named on the policy, or if all beneficiaries predecease the insured, the proceeds normally are estate assets and flow into the decedent’s estate.
- The results of the preceding example typically apply to retirement accounts as well.
Executor Fees in Pennsylvania
Pennsylvania, unlike other states, does not have an official published schedule with specifics as to maximum executor fees. Most judges define reasonable fees on a case by case basis. However, many probate judges and lawyers in this state use the Johnson Estate executor fee schedule to help determine fair executor fees.
I hope these examples illuminate the difference between estate and non-estate assets and that this knowledge sets you up to understand more about the probate process and the role you play during estate administration. For more information, reach out to my office today.