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Trustee vs. Personal Representative

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People navigating the Florida probate process are often confronted with a variety of unfamiliar legal terms and titles. Seasoned Miami probate attorneys can guide clients through the confusion that arises. Still, it is important to have a basic understanding of some of these terms, especially those concerning the people responsible for managing estates and trusts.

The umbrella term for them is “fiduciaries,” people who have a duty to serve in the best interests of an estate or trust and its beneficiaries. There two main types of fiduciaries are trustees and personal representatives.

Trustee

If a living trust is created, then there needs to be a trustee put in charge of managing it. A trustee is specifically named in an estate plan by the individual who created the trust, known as a “trustmaker” or “grantor.” All the property and assets owned by the trust, such as financial accounts and real estate, must be managed day-to-day by the trustee for the benefit of the trust’s beneficiaries. A person, an institution like a bank or trust company, or a combination of both can serve as a trustee. Who gets to be a trustee is partly determined by the type of trust that is created.

Revocable Trust and Irrevocable Trust

A revocable trust is not permanent and can be changed or even revoked entirely. Trustees of these types of trusts are usually also the trustmaker and beneficiary as well. Only when the trustee becomes mentally incompetent or dies does a successor trustee take over. On the other hand, the trustee of an irrevocable trust — permanent after the agreement is signed — cannot be the trustmaker, but another party. In the event of the trustmaker’s death, the trustee or successor trustee typically distributes the property and assets to the beneficiaries and closes down the trust.

Personal Representative

In cases when a living trust was not created or completed, the administration of a decedent’s estate becomes the responsibility of a personal representative. It is a Florida probate judge who appoints a personal representative. If a person or entity was identified in the will as the preferred personal representative, the probate judge will likely honor the decedent’s wishes. However, the probate judge will look to state law if there is no will. The surviving spouse, a person selected by the majority of the heirs, or the heir nearest in degree is typically named the personal representative, in accordance with Florida probate law.

Executor and Administrator

One last thing to keep in mind is that, the term “personal representative” is an umbrella term that encompasses both “executors” and “administrators.” If the personal representative was determined by the will, they will be known as the Executor of the estate. If no will was left, the appointed personal representative is often called the estate’s Administrator.

The probate process is often complex and involves many uncommon terms most people never need to know until they start planning their estate or after the death of a loved one. Experienced Maimi probate attorneys can guide trustmakers or beneficiaries through these stressful situations to ensure the best interests of both are properly served.

The attorneys at Graham Legal are experts in Florida probate law and are committed to helping our clients successfully navigate the Florida probate process. Call us today for a free consultation.

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