Trustee, Personal Representative (executor), and Power of Attorney defined.
This Legal Guide is written to provide working definitions of the roles of a trustee, a personal representative, and a power of attorney to applicable duties and responsibilities. Figuring out roles and duties is hard, and hopefully this Legal Guide will dispel the confusion.
Trustee - DefinedA trustee is someone named in a trust to represent and carryout instructions in a trust. The status of a trust, whether revocable or irrevocable, generally does not affect the authority of the person named in the trust to serve. Before the named person possesses authority to act as trustee, s/he must first have read, understood, and accept the duties as trustee. This generally is not a hard task to get done. After reading and understanding the trust, s/he signs a paper proclaiming the same and publishes it to the proper parties, and to the public if necessary. No court involvement is necessary. Once formalities are out of the way, the person acting as trustee will possess authority ONLY over trust property. Trust property is property that formally has the trust name place upon title (i.e... real property with the trust name on the deed or a bank account with the trust name in the bank records). The question above: "As trustee, can I sell a car that the title has the name of the deceased person written on it?" The role of trustee of a trust are mixed with the duties of a PR of an estate. Here is how to tell: A trustee has authority ONLY over trust property. A car with the name of a deceased person written on it is a probate asset. Here is why: A trust name must be on the car title for the trustee to have authority over it. If the trust name is not on the title, then the trustee possesses no authority - period.
Personal Representative / Executor - DefinedA personal representative (PR) (also still commonly known as executor / executrix) is someone a court confirms to represent an estate of a deceased individual who left a Last Will and Testament ("Will"). Until a court confirms a Will and the person named therein to serve as a PR of a probate estate, that named person is ONLY nominated and does not possess authority to take action. The nominated individual still has to meet minimal requirements of capacity before being confirmed to serve as a PR. An important point is a PR serves only over a probate estate. A probate estate has those assets that DO NOT PASS by operation of law (i.e. joint tenancy with rights of survivorship), or over property that passes by contract (i.e. a life insurance policy, a pay on death account, or a trust). No probate assets, no probate, and thus generally no need to appoint a PR. Exceptions exist but are narrow and rare to be relevant to this general description. The question above: "Does an executor over a trust have. . . .?" The role of PR / executor is mixed with the duties of a trustee. Here is how to tell: A PR / executor has authority ONLY in a probate matter, not a trust administration. The correct formulation of the question is: "Does a trustee over a trust have. . . .?"
Power of Attorney - DefinedA power of attorney (agent) is someone named in a financial or healthcare directive to decide matters while a person is incapacitated or otherwise unavailable. The important point here is that the effectiveness of a power of attorney ends at the moment of death of a person who granted authority to another to act as power of attorney. Said another way, a power of attorney has authority only while the person granting the power is alive. At the moment of death, only a court-confirmed personal representative possesses authority. Also, generally, powers of attorney are effective ONLY over property held outside a trust. Again, certain narrow exceptions exist that are outside this general description. The question above: "I was named as power of attorney of (now deceased person), how do I do . . . .? "The role of power of attorney is mixed with the duties of a PR. Here is how to tell: Powers of attorney have authority to act for another only while the other is alive. After death, ONLY a court appointed PR has the authority to act on behalf of the estate of the deceased.
An individual can possess have more than one role, and thus have authority in more than one area.Frequently, people are named to serve more than one role. For example, a person may be nominated as a personal representative (PR) and named as a trustee over a trust. The fact that s/he has multiple roles does not mean that roles and duties and authority are combined. For example, when acting on behalf of a trust, the person is acting as trustee. When acting on behalf of a probate estate, the person is acting as PR.