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Wills & Probate Resources
Trustee vs. Personal Representative in Probate Matters
The primary purpose of the probate process is the transfer of probate assets from a deceased person to that person's heirs or beneficiaries. Whether the decedent created a trust, left a will, or left no testamentary instrument at all, the transfer of property must be administered by either a personal representative or a trustee. Even though a trustee and a personal representative both perform the distribution of a decedent's assets, there are some differences of which you need to be aware.
What's In A Name?
Having a personal representative indicates that the decedent's estate is going through the probate process. By contrast, a trustee is the entity or person who owns and manages the assets of a trust. Trusts do not go through the probate process and are subject to their own legal regime. Both probate and trust administration are matters of state law.
Depending on your jurisdiction, the probate process can be a costly and time-consuming one. A personal representative might have to endure many months of court hearings and tedious procedure. A great solution is creating a trust because trusts are not subject to state probate courts. In many cases, your affairs will be settled much more quickly and easily by putting them in trust for distribution upon your death. However, if you reside in a state where the probate courts are relatively efficient, the additional time and expense required to create a trust might not give your personal representative any additional advantage. Definitely consult a licensed attorney on this point, in particular.
A personal representative is only able to manage and distribute a decedent's assets when given the authority to do so by the probate court. This means a personal representative has very little flexibility as to when and how to transfer the decedent's property. Because a trust can be created before your death, the trustee can start acting on your behalf as soon as the trust is created if you choose. If you are concerned about cognitive decline in your later years, arranging for a trustee to handle your assets might put your mind at ease.