Although courts have differentiated between corporate and individual executors, the distinction more accurately is described as that between professional and nonprofessional executors. While the rule holding professional and nonprofessional executors to the same standard of care has been recited recently as the law in Illinois (see, e.g., Hamilton v. Nielsen (N.D. Ill. 1981), 513 F. Supp. 204, 207; In re Estate of Lindberg (1979), 69 Ill. App.3d 714, 721, 388 N.E.2d 148, 154), the only authority cited by these courts for this rule is In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 370 N.E.2d 290. (See also In re Estate of Vanderwater (1945), 326 Ill. App. 81, 61 N.E.2d 392 (abstract of opinion) (without citation to authority, court stated that executor which qualified as a trust company and advertised for business was subject to the same standard of care applicable to all other executors).) However, the Venturelli court cites no authority from the supreme court, appellate court, or from any Illinois statute in support of its conclusion.
As co-executors of the Hamilton estate, the Bank and Nielsen owed fiduciary duties of care to the plaintiff. Estate of Venturelli v. Granville National Bank, 54 Ill. App.3d 997, 12 Ill.Dec. 667, 370 N.E.2d 290, 293 (3d Dist. 1977); Estate of MacLeish v. MacLeish, 35 Ill. App.3d 835, 842, 342 N.E.2d 740, 746 (1st Dist. 1976). 3.
While the acts of an executor must be judged in the context in which he acted [citation], in Illinois a corporate executor is held to no higher standard than an individual executor. ( In re Estate of Venturelli (1977), 54 Ill. App. 3d 997, 1002 * * *.)" In re Estate of Lindberg, 69 Ill. App. 3d at 721.
Like the executor, the administrator is the representative of the decedent and all those interested in the estate, such as creditors, heirs, legatees, and devisees; he is a fiduciary to those interested in the estate and, as such, is held to a high standard of fair dealing and diligence. In re Estate of Garbalinski (1983), 120 Ill. App.3d 767, 772; In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 1002; see Wilmere v. Stibolt (1987), 152 Ill. App.3d 642, 645 (when administrator acquires possession of the assets of the decedent, title vests in the administrator as a quasi-trustee or trustee for the benefit of creditors, distributees, and legatees). In representing decedent in his capacity as controlling shareholder, the administrator also has a separate fiduciary duty to the corporation itself and cannot misappropriate corporate assets (see Graham v. Mimms (1982), 111 Ill. App.3d 751).
Furthermore, the corporate executor is held to no higher standard than is the individual executor. ( In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 370 N.E.2d 290.) The Bank had a right to hire an attorney to handle the legal affairs of the estate, and the Bank had a right to rely on the attorney's advice, unless the Bank knowingly chose incompetent counsel or had some reason to know that the advice given was not sound.
The standard for determining whether a representative has mismanaged a decedent's estate is whether the representative acted as an ordinarily prudent and cautious person who is the trustee of property of another. ( In re Estate of Busby (1937), 288 Ill. App. 500, 6 N.E.2d 451; In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 370 N.E.2d 290.) The petitioners argue that the executors violated this standard by failing to submit the real estate lease to the court, as required in section 20-2 of the Probate Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 20-2).
• 1, 2 The standard of care required of the administrator of an estate was set forth in Christy v. Christy (1907), 225 Ill. 547, 80 N.E. 242. An administrator must possess the highest degree of fidelity, and utmost good faith, and the skill that an ordinarily prudent man bestows on his own affairs. 225 Ill. 547, 552-53; see also In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 1002, 370 N.E.2d 290 (applying the Christy standard to executors).) The issue is not whether an ordinarily skillful executor would have succeeded in selling the estate's shares at a better price; the issue is whether the Bank made a reasonable attempt in the instant case.
• 2 It is true the court may make an award without hearing evidence ( cf. In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 1000, 1004, 370 N.E.2d 290). However, in the instant case the court did specifically order that a hearing take place on the widow's petition.
) There is no clear-cut rule to aid the probate court in ascertaining what a reasonable fee should be; it is a determination which must be based on the facts and circumstances of the particular case being considered. ( In re Estate of Brown (1978), 58 Ill. App.3d 697, 706, 374 N.E.2d 699, 706-07.) The factors to be weighed by the probate court in making this determination include the size of the estate, the complexity of its administration, the skills used, the opinion testimony of those familiar with that particular type of work ( In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 1004, 370 N.E.2d 290, 295), the time required and the diligence, good faith and reasonable prudence of the one requesting the fee ( In re Estate of Brown (1978), 58 Ill. App.3d 697, 706-07, 374 N.E.2d 699, 707). In order to reverse the allowance of an executor's fee a reviewing court is required to find that the trial court's determination is manifestly or palpably erroneous.
While the acts of an executor must be judged by the context in which he acted ( In re Estate of Busby (1937), 288 Ill. App. 500, 519-22, 6 N.E.2d 451), in Illinois a corporate executor is held to no higher standard than an individual executor. ( In re Estate of Venturelli (1977), 54 Ill. App.3d 997, 1002, 370 N.E.2d 290.) In either case, the fiduciary must act with the highest degree of fidelity, with the utmost good faith, and with that degree of skill and diligence which an ordinarily prudent man bestows upon his own similar affairs.