Should Your Trustee and Personal Representative Be the Same Person?

Should Trustee and Executor Be the Same? A Florida Guide

Should trustee and executor be the same? One person can hold both roles, but whether they should depends on the governing will and trust instrument and applicable Florida law. A trust names a trustee. A will names a personal representative (often called an executor). Those can be the same person, or the documents can name two different people. This guide explains each role, why families often split them, and what to review first.

Can the same person be both trustee and executor?

Yes, one person can sometimes hold both roles. Whether that makes sense depends on what each document says. The two roles often sit in different documents. A trust names a trustee to manage the assets inside it. A will names a personal representative to handle the probate estate.

Florida law says a “will” can include an instrument that appoints a personal representative. So the appointment can sit inside the will itself, according to Florida probate definitions. Florida also defines “trustee” broadly. The term includes an original, additional, surviving or successor trustee.

Being named is not the same as serving. A person named as trustee accepts by following the method in the trust. If the trust sets no method, accepting trust property or using trust powers can count. A named trustee who does not accept within a reasonable time is treated as having declined, according to Florida trusteeship acceptance rules.

What is the difference between a trustee and a personal representative?

A trustee manages trust property for the beneficiaries. A personal representative settles and distributes a person’s probate estate. The exact duties depend on the governing instrument and applicable Florida law. The job title alone does not settle the scope.

For a trustee, Florida law says the trustee must keep qualified beneficiaries reasonably informed about the trust. See Florida trustee duty to inform. The trustee also must keep clear, accurate records and keep trust property separate from the trustee’s own. See Florida trust recordkeeping rules.

A personal representative is a fiduciary. The personal representative must follow the standards that apply to trustees. The job is to settle and distribute the estate under the will and the probate code. That work should be as efficient as the estate’s interests allow, according to Florida personal representative duties.

Florida also sets who may qualify. A legally competent adult who was a Florida resident when the decedent died may qualify, subject to the limits in that part of the code. See Florida personal representative qualifications.

Can your personal representative also be your trustee?

Yes, one person can hold both roles when the will and the trust name the same individual. Whether that works well depends on the documents and the family’s situation.

There are possible advantages. The person may already know the family’s assets and the plan’s goals. Coordinating the probate estate with the trust may feel simpler when one person handles both.

There are also possible drawbacks. The workload can grow quickly. One person may face competing deadlines and competing duties. Beneficiaries may also disagree with decisions made in either role.

The standard of care for a personal representative is the one that applies to trustees. Because of that, a combined role can bring both sets of responsibilities into one job, as described in Florida personal representative duties. Whether that fits a particular family depends on the governing instrument, applicable Florida law and the facts of each case.

Why do families often name different people?

Families often split the roles to share the work. They may also match each person’s strengths to a task. These reasons are practical and personal. The documents still control what each person can do.

Common factors families weigh include the following:

• Distance. A trustee may need to manage property or deal with institutions nearby.
• Time. A trust can run for years. Probate work may be shorter, depending on the estate.
• Comfort with records. Trust accountings must be reasonably understandable reports that identify the trust, the trustee and the period covered, as described in Florida trust accounting rules.
• Family dynamics. Some families spread control so no one person holds too much authority.

Some families name a professional instead. Leslie V. Marenco can serve individually as trustee or personal representative, subject to the governing instrument and applicable Florida law. Many families also review professional trustee and executor services when weighing this choice. Whether a lawyer serving as a fiduciary may be compensated, and whether fiduciary services and legal services are treated as separate roles with separate fees, depends on the governing instrument, applicable Florida law, any court order, and the facts of each case.

Is it wise to have more than one personal representative?

A will may name more than one personal representative. Florida has rules for how joint personal representatives act. Unless the will provides otherwise, a majority of joint personal representatives appointed under a will executed on or after October 1, 1987 must concur on acts connected with administration and distribution. Stated exceptions apply. See Florida joint personal representative rules.

Cotrustees follow a similar idea. Cotrustees who cannot reach a unanimous decision may act by majority decision. A cotrustee may not hand off a function the settlor reasonably expected the cotrustees to perform jointly. See Florida cotrustee rules.

Shared roles can add checks on one another. They can also slow decisions and create disagreements. Review how the documents handle resignation, replacement and disputes between co-holders. Those answers depend on the governing instrument and Florida law.

How do the will and the trust shape each role?

The governing documents set much of each role’s scope. Florida law fills gaps where the documents are silent. A trust can continue after the settlor’s death. A probate estate runs through the probate process, and the level of court involvement depends on the facts and the documents.

Trustee notice steps are one example. The statute sets notice steps for qualified beneficiaries, some with a 60-day window. How those steps apply depends on the type of trust and the timing involved. See Florida trustee duty to inform.

Readers should not assume either role carries particular powers or duties until the specific documents are reviewed under applicable Florida law. For more on how trusts are run after a death, see trust administration services.

Questions to answer before naming or accepting a role

Start by listing which documents name which person. Check whether those documents conflict or overlap. Then consider these points:

• Which assets sit inside the trust, and which pass through probate, based on titles and beneficiary designations.
• How much time, distance and administrative capacity each candidate has.
• Whether a professional trustee or a co-fiduciary arrangement fits the family, under the governing instrument and applicable law.
• Who the beneficiaries are and what communication they expect.

Can a trustee resign in Florida?

A trustee may resign under the trust’s own procedure. A trustee may also resign on at least 30 days’ notice to qualified beneficiaries, the settlor if living and cotrustees, according to Florida trustee resignation rules.

Can a personal representative resign?

A personal representative may resign. The court may accept the resignation after notice to interested persons, if the estate’s interests are not jeopardized. See Florida personal representative resignation.

Does a named trustee have to accept?

Not automatically. A named trustee who does not accept within a reasonable time is deemed to have declined, as stated in Florida trusteeship acceptance rules.

Talk with Trust Counsel before you accept or name a role

If you’ve just been asked to serve as trustee, personal representative or both, this choice can feel sudden. It can also feel unfamiliar. You don’t have to sort out the documents alone.

Trust Counsel, PL focuses its practice on trust and estate matters. That includes trust administration, probate litigation, trust litigation, and professional trustee and executor services. The firm advises and represents trustees, personal representatives and beneficiaries, subject to the governing instrument and applicable Florida law. The firm’s only office is in Coral Gables, Florida. Leslie V. Marenco is the responsible lawyer for this page.

The initial consultation is free, confidential and without obligation to continue. Fees are agreed between client and attorney according to the scope of work. Call (305) 707-7126 or schedule online to talk through your situation.