Executor vs. Trustee vs. Guardian in Florida 2024: What’s the Difference?

Estate planning involves terms that are more familiar to lawyers than the general public. As you begin planning for the future through estate planning, you may come across the terms executor vs. trustee vs. guardian in Florida. The Law Office of Douglas A. Oberdorfer, P.A., is here to help. As part of your estate planning, our elder law attorney will explain each of these terms in detail.

What Is an Executor?

Your will serves several purposes. One is to designate who inherited which parts of your estate. As you draft your will with the help of an estate planning lawyer, one of the most important decisions you will make is delegating an executor, which is alternatively called a personal representative in Florida’s courts.

The executor of your estate has the primary job of protecting your property as debts and taxes are paid. The personal representative then transfers the remaining assets and property to the heirs and beneficiaries named in the will.

Florida has certain requirements for who is eligible to serve as the executor of an estate. The executor must be 18 or older and mentally and physically capable of serving. Florida has prohibitions that bar anyone with a felony or certain convictions (such as exploitation of an elderly person) on their record.

Certain restrictions have been placed on which types of corporations can serve this role. Choosing an executor is a step that should not be rushed. Ideally, you will want to choose someone who lives nearby. The work of settling an estate can take weeks, months, or longer.

Florida has restrictions on delegating this task to someone who lives out of state. A non-resident executor must be related to you. Even if you have someone in mind who lives out of state, keep in mind that distance will make the work of settling your estate that much more difficult.

What Is a Guardian?

The term guardian can come up in different circumstances. If both parents die, the court may appoint a guardian to look after the best interests of surviving children. Guardians are sometimes appointed to oversee large inheritance amounts until the child comes of age.

If someone loses the capacity to make sound decisions on their own, the courts may assign a guardian to manage the estate. This is often a family member or a professional guardian. Under this court appointment, the guardian may make a major decision on your behalf. During your estate planning, you can account for the possibility of future guardianship by making your plans for your estate clear and setting up trust accounts that will be protected from guardianship.

If you are placed under guardianship, you will be designated by the courts as the ward. Before a guardianship can be given, the courts will appoint a committee to evaluate the mental state of the individual. The committee then provides an opinion on the matter. The guardian can then make financial and medical decisions on behalf of the ward.

In some cases, the courts may award emergency guardianship if the prospective ward is a threat to themselves or their property. A guardian cannot meddle with assets that are protected by a trust.

What Is a Trustee?

If you establish a trust as part of your estate planning, you will need to designate a trustee to manage the trust. A trust is a fiduciary agreement that transfers assets from one person to the other. This can be done to protect property or land before it is transferred to an heir. One reason people rely on a trust is because probate courts cannot touch anything protected by the trust.

During your lifetime, you may alter the trust if it is revocable. The trustee manages the trust property and often oversees investments that use trust funds. Many trusts allow the grantor to withdraw money from the trust at any time.

In the event that your trustor is incapacitated, the trustee will fully manage the trust property. In accordance with the language establishing the trust, the trustee can make payments from the trust account.

Upon the death of the trustor, the trustee pays outstanding claims and taxes. They then distribute the remaining assets as laid out by the trust’s directives. The process of funding the trust involves transferring assets to the trust. Anything that isn’t transferred may be subject to probate court action.

FAQs

Q: Who Has More Power? Executor or Trustee?

A: Both the executor and trustee have significant power but over different areas. The executor of your estate is tasked with handling a broad range of tasks upon the passing of the estate owner. The trustee handles the trust’s assets in accordance with the wishes of the estate owner. As part of the estate planning process, careful consideration should be given to who should serve these important roles.

Q: What Is the Difference Between an Executor and a Guardian?

A: An executor fulfills the wish of an estate owner after the estate owner dies. A guardian is someone who is placed in guardianship over an individual who is usually elderly. Both positions are tasked with fulfilling the wishes of the estate owner and working in their interest. One way you can prevent a guardianship case is through estate planning.

Q: Should Executor and Trustee Be the Same Person?

A: You can name the same person to be the executor and trustee of your estate. There can often be benefits to this arrangement. Consolidating some of the titles involved in estate planning can have the benefit of cost savings. If you have questions about whom to assign these important titles, consult with a trusted estate planning attorney.

Q: Can a Trustee Also Inherit?

A: Yes. The trustee of an estate can also be a beneficiary of part of the inheritance. This is actually quite common. For instance, someone may name their spouse as the trustee for their estate. This happens when there is a family trust involved. The most important thing to consider when assigning a trust is to be sure that the person is willing and competent enough to fulfill that role.

Schedule Your Estate Planning Consultation Today

During your initial consultation with the Law Office of Douglas A. Oberdorfer, P.A., our esteemed attorney will be glad to explain and clarify the terms commonly used in estate planning. In no time, you’ll be up to speed on the nuances of wills, trusts, and other contracts and documents. Estate planning shouldn’t be put off until late in life.

Life can be unpredictable, but the circumstances that follow your death shouldn’t have to be. We look forward to partnering with you. Contact our office to set up your initial consultation today.