What's the difference between an executor and an administrator?
They have the same powers, it's just a naming convention based on who appointed them:
- Executors are appointed under the will.
- Administrators are appointed by the court, usually when there isn't a will.
Collectively they're known as 'Personal Representatives' and are the only people allowed to deal with the assets of the estate while it is being administered.
Executors
The will has to appoint at least one executor. There is no upper limit to the number that can be appointed, but only a maximum of four can be granted probate.
Almost anyone can be an executor, including a minor (although they can't apply for probate until they're 18), someone insolvent, and someone with a criminal record. It's very common for an executor to be a beneficiary, and they don't have to be forewarned that they are named in the will.
Refusing to act. An executor can refuse to act by renouncing, but they must do this early. If they have begun the administration in any way (known as intermeddling), they cannot then renounce.
Reserving power. If there are two or more executors, it's common for one to apply for probate and the other to reserve power (effectively sitting on the bench) to step in if needed. The reserve can still help with the estate admin; they just can't do any actions that require legal authority.
When the appointment is unclear. A will may be unclear on who is the executor (e.g. "one of my brothers"), which can mean the appointment is void for uncertainty, although a court will assess other evidence to try to avoid this. Conversely, someone may not be named as executor but is given responsibility for a key act which is characteristic of administration (e.g. "my husband should arrange my funeral"), they may then be intended as, and deemed, the executor.
When an executor won't act. If the executor won't act, or is being slow to act, then someone with an interest in the will (e.g. a beneficiary) can apply for citation through the courts. The reluctant PR is then required to 'enter an appearance'. If they don't, they lose their right as executor.
When executors have died. If all the executors have died, then the court will appoint an administrator (with will annexed).
Executors de son tort are people who act as executors even though they have no right to meddle in the estate. An executor de son tort can be personally liable for their actions.
Administrators
Administrators are appointed by the court because no, or no appropriate, executor has been named to deal with the deceased's estate. The usual case is when the deceased didn't leave a will. If a will exists but is deemed invalid, then an administrator will be appointed.
Generally one administrator will be appointed, but there can be a maximum of four.
Who can be appointed. Rule 22(1) of the Non-Contentious Probate Rules sets out the groups of candidates that must be considered in order, the same as the intestacy rules (see order of inheritance without a will). Administrators can renounce, the same as executors; the courts will confirm a candidate has been 'cleared off' before moving to the next candidate.
Minors. A minor cannot act as administrator. Where a minor would be entitled to the grant, a parent or guardian (or other suitable adult) takes out a grant for the minor's use and benefit, and administers the estate until the minor turns 18.
When there is a will. Administrators can be appointed even where a will exists. For example, if the will failed to make clear who the executor should be, if all the executors have since died, were cited and didn't appear, are no longer mentally capable, or were a spouse/civil partner but have now divorced. In this case, the application is made with the will annexed. An administrator is chosen following a separate set of rules (Rule 20); the logic is that the person with the greatest financial interest in what's left of the estate gets first claim to administer it.