January 15, 2014
Personal Representative - Executor, Administrator or Administrator with Will Annexed
Using the appropriate term is important in law. While certain terms are inter-changeable, e.g. president and chief executive, other legal terms are not so flexible. For instance, in the probate context, the person entrusted with administering a decedent's estate, the personal representative, can have multiple labels but each label derives from a particular circumstance.
The term "personal representative" means "executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status."Prob C § 58(a).
Three common labels in terms of describing a personal representative are (1) executor, (2) administrator and (3) administrator with the will annexed. As mentioned, each of these terms relate to a specific situation that allows the person to serve as the personal representative albeit from different routes.
The executor is the person named in the will to administer the estate.
When appointed, the executor is provided letters testamentary.
Still, the executor must be appointed by the court in order to serve as the executor. It is not automatic that the executor will be appointed. For example, the proposed executor may have predeceased the decedent, is unable to be located or lacks the competency to handle the rigors of probate.
This is probably the term the general public has the most familiarity with out of the three terms. Furthermore, many people erroneously conflate the term "executor" and "trustee" though the former relates to a will and the latter relates to a trust. While the roles entail similar duties they are nonetheless mutually exclusive terms.
The administrator is the person who administers the estate when the decedent died intestate, i.e. without a will.
When appointed, the administrator is provided with letters of administration.
Typically the administrator is the child of the decedent because they are an heir and therefore have priority to be named administrator. From personal experience, a probate case I had last year involved an intestate decedent who was survived by her children. Whereas the daughter was the only child interested in handling her mother's probate, she was appointed administrator.
Administrator with the Will Annexed
The administrator with the will annexed is the person who administers the estate because no executor was named in the will or the proposed executor(s) decline to act.
When appointed, the administrator is provided with letters of administration with will annexed.
This can be seen as a hybrid of the first two because a will has been written but nobody, for whatever reason, can serve as the executor. Hence, the administrator is selected by who has priority via intestate succession, i.e. next of kin, as in the case of an administrator. Prob C §§8441, 8461.
The use of the correct term when describing the personal representative is important because when a client calls with a question about probate, their title can provide quick insight into their situation. For example, if a client says they are the executor, then I immediately know that there is a will.