Executor, Administrator or Trustee?

After a death somebody has to gather the property, pay the debts and hand out what remains. What that person is called depends on how they got the job — and the label carries consequences.

Executor

An executor is a person named in a will to carry it out. Their authority comes from the will itself, and the court confirms it by granting probate — the court’s formal recognition that the will is valid and the executor may act.

Under section 5 of the Public Curator Act (Chapter 81), a person may by will appoint the Public Trustee to be the sole executor or trustee of their will. On the testator’s death the Public Trustee must then apply for probate or execute the office of trustee — subject to section 8, which allows it to decline in the limited circumstances covered in part 4.

Administrator

An administrator does the same work where there is no executor able or willing to act — usually because there is no will, or the will named nobody, or the named executor has died or renounced. Their authority does not come from a document signed by the deceased. It comes entirely from a court grant, historically called letters of administration.

The Act’s definition in section 1 is worth reading closely. “Administrator” includes any person to whom administration is granted, and expressly includes:

• the Public Trustee, where an order is made under section 10 or 11; and
• a Distributor appointed under the Wills, Probate and Administration Act, where an order is made under section 110 of that Act.

So when the Public Trustee obtains an order to administer, it becomes the administrator of that estate, with the same powers, rights and obligations as if administration had been granted to it.

Trustee

A trustee holds property for somebody else’s benefit. The role often begins where administration ends: the executor or administrator finishes gathering and paying, and then holds what is left for a beneficiary who cannot yet receive it — a child, a missing person, someone under a disability.

The Act treats the roles as overlapping deliberately. In section 7, dealing with minors’ property, “executor” is defined to include an administrator with or without the will annexed, and a trustee. One person can wear all three hats in a single estate.

Why the label matters

Three practical consequences.

Authority to deal with third parties. A bank, a superannuation fund or a land registry will ask what authority you hold. “I am the eldest son” is not an answer the law recognises. Probate, letters of administration, or an order to administer is.

Timing. An executor’s authority runs from the death; probate confirms it. An administrator has no authority at all until the grant is made. Acting before the grant — selling a vehicle, emptying an account — is a real risk.

Exposure. Whoever administers is accountable for the administration. Under the Act, the estate is liable for the Public Trustee’s commission and charges once it has taken possession (section 42), and the Public Trustee remains liable for its own management of an estate even if the family later takes over (section 9(6)).

The gap before a grant

Between the death and the grant there is a period when nobody has clear authority and property can be lost. The Act fills it in two ways.

Section 14 lets the Public Trustee or an agent take possession of property immediately and without any court order where the deceased left no will, or a will with no executor appointed, or an executor who is dead, too far away to act without delay, or does not intend or neglects to act. Having taken possession, they may preserve the property, sell perishables, and pay funeral and preservation expenses from it.

Section 15 goes further, allowing the Public Trustee to exercise the powers of an administrator until probate or letters of administration are granted — but not to sell, lease, exchange, mortgage or partition property except perishables, unless the National Court orders a sale. Before first acting, it must generally notify anyone known to be entitled to apply for the grant, who then has 21 days to say they intend to apply and 14 days after that to actually apply.

Where to next

That completes the set half of this series. The next five articles answer the questions families actually ask once the Public Trustee is involved — starting with what you are entitled to see and to challenge.