Table of Contents
Key Takeaways
Understanding the Roles
What an Executor Does in a California Probate Case
What a Trustee Does When Administering a Trust
When One Person Serves as Both Executor and Trustee
Your Fiduciary Duties Under California Law
Practical Steps to Take if You Hold Both Roles
Related Resources
FAQ
How The Grossman Law Firm Can Help
Key Takeaways
- The difference between the executor and trustee of a California estate centers on which assets they manage and which legal rules apply.
- An executor handles assets passing through probate and is supervised by the probate court.
- A trustee manages assets already placed in a trust, in accordance with the trust’s terms and the California Probate Code.
- When the same person serves in both roles, they must keep assets, duties, and accounting separate.
- Beneficiaries who have concerns about either role can petition the probate court for help.
Understanding the Roles
When someone passes away in California, their assets may be divided between two categories:
- Assets held in a trust, managed by a trustee.
- Assets that must pass through probate, managed by an executor
It is common for the same person to serve in both roles, which can create confusion about which responsibilities apply in which situations. At The Grossman Law Firm, we regularly help Californians understand these obligations and avoid mistakes that lead to litigation.
What an Executor Does in a California Probate Case
An executor is responsible for handling the decedent’s probate estate. The probate court appoints the executor after the will is filed, and the executor must follow California Probate Code requirements before distributing assets.
Core Responsibilities of an Executor
Under California law, an executor must:
- Locate and take control of probate assets
- Notify creditors and pay valid debts
- File the required probate pleadings with the court
- Manage estate property, including deciding what must be sold
- Pay taxes, including income tax and any estate-related taxes
- Distribute assets strictly according to the will
- Prepare a final accounting unless waived by the court
What Executors Cannot Do?
- They cannot distribute assets early without court approval.
- They must follow the will exactly; they cannot change beneficiaries or alter distributions.
- They cannot mix estate funds with personal accounts.
Executors operate under court supervision, meaning many actions require formal approval through petitions, notices, and hearings.
What a Trustee Does When Administering a Trust
A trustee manages the assets already titled in the trust. Unlike probate, trust administration generally does not involve court supervision unless a problem arises.
Core Responsibilities of a Trustee
A trustee’s duties are governed by the trust document and by California Probate Code §§16000–16015, 16060, 16061, 16062, 16200–16249, and 16420–16440.
A trustee must:
- Administer the trust according to its terms
- Keep beneficiaries reasonably informed (Probate Code §16060)
- Provide accountings as required (Probate Code §16062)
- Identify, secure, and protect trust property
- Manage and invest trust assets prudently under the Prudent Investor Rule
- Act impartially when multiple beneficiaries exist
- Avoid conflicts of interest
- Preserve trust assets and manage them productively
Trustee Fiduciary Duties Include:
- Duty not to delegate tasks improperly
- Duty to remain loyal to the beneficiaries
- Duty to segregate trust assets
- Duty to diversify investments
- Duty to review trust assets regularly
- Duty to use special skills if the trustee has them
- Duty to avoid self-dealing
- Duty to cooperate with co-trustees
Trustees must act as a careful, capable person would when managing someone else’s money. To learn more about trustee duties and their common breaches, read our article “20 Ways Your Trustee Can Be Breaching Their Fiduciary Duties.”
When One Person Serves as Both Executor and Trustee
It is extremely common. However, each role carries separate powers, duties, and accounting requirements.
Key Differences to Keep in Mind
- Executor = probate assets under court oversight
- Trustee = trust assets under the trust instrument
- Executor powers come from the court’s Letters Testamentary
- Trustee powers come from the trust document
- Each role must keep funds and records separate
- Beneficiaries may have different rights depending on whether the property is part of the trust or the probate estate
Failing to separate duties properly can lead to surcharge actions or removal.
Your Fiduciary Duties Under California Law
Both roles carry fiduciary obligations, but they apply differently:
Executor Fiduciary Duties
- Follow the will
- Act in the estate’s best interest
- Avoid conflicts
- Maintain accurate probate accounting
- Obtain court approval when required
Trustee Fiduciary Duties
- Follow the trust
- Act solely for beneficiaries
- Comply with the Prudent Investor Rule
- Provide accountings
- Preserve trust property
Understanding these distinctions protects you from legal exposure.
Practical Steps to Take if You Hold Both Roles
Anyone appointed as both executor and trustee should:
- Read the will and trust carefully to understand the separate directions.
- Identify all assets and determine whether each belongs to the trust or the probate estate.
- Keep accounts, expenses, and documents separate between the two roles.
- Follow notice and accounting requirements, including the 120-day Notice by Trustee rules when applicable.
- Consult a probate and trust litigation attorney to avoid costly mistakes.
At The Grossman Law Firm, we help clients navigate these overlapping responsibilities so they can administer the estate correctly and avoid litigation.
Related Resources
- Overview of California Trust Litigation
- Executor’s Duties in California: What Happens If They Breach Their Fiduciary Duty?
- What If the Executor Won’t File the Will?
- What Are an Executor’s Duties in California?
- Can a Trustee Be Removed for Mishandling Assets?
- Can’t Afford a Probate or Trust Attorney?
FAQ
What is the key difference between the executor and trustee of a California estate?
The executor manages probate assets under court supervision. The trustee manages the trust assets in accordance with the trust document. Both roles involve fiduciary duties, but the legal authority and procedures differ.
Can the executor and trustee be the same person?
Yes. It is very common, but the person must keep the roles and accounts separate.
Do executors and trustees follow the same laws?
No. Executors follow probate court procedures and statutory requirements. Trustees follow the trust instrument and the fiduciary duties outlined in the California Probate Code.
Do trustees have to follow the Prudent Investor Rule?
Yes. California’s Prudent Investor Rule requires trustees to invest and manage assets the way a prudent, skilled investor would.
How long do I have to challenge a trustee’s actions?
If you receive a Notice by Trustee (Probate Code §16061.7), you generally have 120 days to contest the trust or challenge the trustee’s actions. Other breaches may have different timelines.
Can an executor distribute assets before probate closes?
Not without court approval. Doing so risks personal liability.
How The Grossman Law Firm Can Help
At The Grossman Law Firm, we help beneficiaries and heirs throughout California enforce their rights in probate and trust litigation. Call (888) 443-6590 or fill out our Get Help Now form. Our Intake Specialists can evaluate your case at no cost to you. Qualifying matters will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.
Originally Published Mar 8, 2023