The Legal Pad of Richard Magnone this month: What does the personal representative do?

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EXECUTOR, ADMINISTRATOR, REPRESENTATIVE? By Richard Magnone © 1999 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 probate situation, 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 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 the deceased did leave a will, that will likely appoints an executor to represent the probate estate. In the event that a person dies without a will, the court will appoint an administrator to represent the probate estate. Second, the powers and duties of an executor and administrator may also be different. An administrator's power comes entirely from that power bestowed upon it by the Probate Act. An executor, however, while enjoying many statutory powers also may be given additional powers or be limited in the extent of its power by the terms of a will. Most wills, absent some reason to the contrary, provide for the broadest power possible for an executor. 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 JOB OF THE REPRESENTATIVE In the most simple of terms, the representative is charged with "probating" the estate of the deceased person. This consists of following the procedure necessary to carry out the distribution of the property owned by the deceased person. Once oficially 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. All of this must be done 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. WHAT SHOULD I DO IF I AM ASKED TO ACT AS REPRESENTATIVE? The responsibility placed upon the shoulders of a representative is great. 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. Click here for more information on probate and my probate law services in Illinois For more information, including a free telephone consultation or to make an ppointment, please contact Richard Magnone at 773-399-1122 or email me at rmagnone@Megsinet.net DISCLAIMER This website is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that laws change quickly, and visitors should always insure that legal information is accurate before relying on it. The above information applies the law of the State of Illinois. The law in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting. This website is intended to be advertising, not solicitation, nor legal advice. Thus, the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein, and should always seek the advice of competent counsel in the reader's state. Return to Legal Pad Contents Return to Main Page