This question comes up a lot in my practice. Since they are two different jobs, that come with different responsibilities, I ask my clients who they want to name for each job. They’re fine with it for the trustee, since that question comes first, but when I ask them who they want for their executor they have a reaction along the lines of “Wait, didn’t I already answer this question?”
In most cases it doesn’t matter. Most of my clients pick the same person for both jobs, partly because that person is the best fit and partly because that way they don’t have to figure out how the two jobs are different. However, there are some clients who want to name different people, and then there are the oddballs (like me) who actually enjoy learning random things. If you fall into either category, this article should be helpful.
The executor is the person in charge of your estate. By “estate” I mean everything that is owned by you at the time of your death – your house, your furniture, your bank accounts, that weird little souvenir you picked up on your last vacation to Guatemala…all of it is in your estate. The executor’s job is three-fold: first, he[1] has to find everything that’s in your estate and take control of it. That means getting access to bank accounts, getting his name on the deeds to any real property, etc. Finding everything is sometimes the most difficult part of the whole job.
The second part of the executor’s job is to figure out the value of the estate. This is important, because the value determines whether the estate has to go through probate and/or pay estate taxes. An appraiser may have to get involved for high value items like real property or jewelry. If the estate is valued at more than $150,000, the Probate Court will have to help the executor through the third part of the job, which is the distribution of the estate. Everything has to go somewhere; stuff can’t stay in a dead person’s name forever (unless it’s a monument, business or stretch of freeway).
The executor does have a couple of other jobs: dealing with your remains and paying off your debts. The trustee might help with the second job, but it’s ultimately the executor’s responsibility.
The trustee, on the other hand, has exclusive control over everything in the trust. The trust is treated the same as a business – it’s its own entity and can own things in its own name, so anything owned by the trust is not part of the estate. That’s why having a trust can keep you out of probate.
The duties themselves are the same as the executor – find the assets, take control of them, and distribute them to the people or entities the trust names. The difference is that the trustee only controls the assets in the trust, and the executor only controls the assets in the estate. It’s like having everything you own in two buckets: the executor controls the Estate bucket, and the trustee controls the Trust bucket.
If you would like to learn more about trustees versus executors, or would like some help figuring out who to name as trustee and/or executor, you are welcome to email me at kaway@kawaylaw.com.
[1] I use “he” here because a female executor is actually called an executrix. See how this gets so confusing?