Personal Representatives vs Trustees
It’s easy to get confused with legal jargon and feel like the process is “over your head”. However, being able to communicate with your attorney is important and enables your counsel to more effectively do their job. Here’s a couple terms that you should know:
What is a Personal Representative?
The Personal Representative is the person who is in charge of overseeing the administration of an estate in probate proceedings. If the person who passed away (known as the “Decedent) executed a will, the person they nominated to serve in this capacity in called an Executor (male) or Executrix (female). If the decedent died without a will (known as “intestate”), then the person appointed by the court to supervise the probate is known as the Administrator (male) or Administratrix (female). Your duties as the Executor or Administrator are the same but the requirements for qualifying to serve are different. While it doesn’t matter where an Executor lives, Nevada law requires that an Administrator reside in the State of Nevada. However, you can still serve as a Co-Administrator if you live outside of Nevada as long as you have a Nevada resident agree to serve with you as a Co-Administrator.
When do I need a Trustee?
If you create a revocable living trust, you are known as the “settlor”, “grantor” or trustor”. These three terms all refer to the same person. However, the person you nominate in your trust to be in charge of its administration is called the “trustee”. During your lifetime, you generally serve as the trustee. However, in the event you are unable to manage your finances without assistance (known as “incapacity”), a “successor trustee” steps in to serve in your place. You nominate the successor trustee in your trust document which also describes their powers and authority. The successor trustee would also take over the management of your trust upon your passing.
Don’t the Personal Representative and
Trustee do the same thing?
No. The Personal Representative doesn’t get appointed by the Court until after you die while the Trustee may take over while you are still alive but become incapacitated. This is the reason that if you want your family to be able to avoid having to seek court intervention in the event of your incapacity (known as “guardianship”), you should execute a Durable Power of Attorney for Financial Matters. This document enables them to take control of your finances after your doctor determines you no longer have the capacity to do so. The Personal Representative manages assets that must go through the probate process while the Trustee supervises a process that does not involve the probate court. There are significant advantages of avoiding the probate process.
Whether you are thinking about having your attorney draft a will or trust, make sure to ask him or her to explain any terms your don’t understand. This is an important part of drafting an effective estate plan.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
