By: Justin M. Smigelsky, Esq.1
Pursuant
to statute2, a fiduciary is under a duty to expeditiously and
efficiently settle and distribute the estate of the decedent in accordance with
the terms of any probated and effective will and applicable law. Accordingly, a
fiduciary appointed to administer an estate – an executor, administrator and
substituted administrator with the will annexed, or trustee under a will – must
adhere to the directions of the instrument under which he or she was appointed.
Any deviation from the testator’s testamentary scheme during the course of the
fiduciary’s administration of an estate or trust is made at his or her own
peril; therefore, the fiduciary must be cautious if he or she is to take any
action not consistent with his or her authority. If the fiduciary exceeds his
or her authority under the instrument, he or she may be liable for any ensuing
loss regardless of his or her good faith or due care.
In
limited circumstances a fiduciary may be permitted to depart from the
directions of the governing instrument – if the powers of the fiduciary are not
clearly defined (oftentimes, the authority granted is far from clear); if it is
impossible or illegal to comply with the directions; if compliance would
substantially impair the accomplishment of the purposes of the instrument; or,
most importantly, if a court permits departure.3
With
respect to seeking the advice and direction of the court, a fiduciary has the
right – and duty – to seek the court’s direction if he or she has a substantial
doubt as to his or her duties and obligations. Pursuant to Rule 4:95-2, a
fiduciary is permitted to bring an action for instructions as to the exercise
of any statutory powers or for advice and direction in making distributions.
Due to the potential liability for failure to adhere to the terms of a will or
trust, a fiduciary should seek advice and direction if he or she is unsure as
to the propriety of any action to be taken.
Because
estate and trust administration and litigation requires specialized knowledge,
you may wish to consult with an experienced attorney if you are either a
fiduciary or beneficiary of an estate or trust. Specifically, you may wish to
contact an attorney if you have questions regarding the probate process,
administration of an estate or trust, fiduciary obligations, preparation of a
formal or informal accounting, refunding bonds and releases, and the procedures
for filing a formal accounting or exceptions thereto. This article is
for information purposes only, and is neither legal advice nor the creation of
an attorney client relationship.
- Justin M. Smigelsky, Esq. is an Associate with Timothy J. Little, P.C., with offices in Woodbridge and Chesterfield, New Jersey.
- N.J.S.A. 3B:10-23.
- In re Cook’s Will, 35 Backes 123 (Prerog. 1945).
- See In re Matter of Wold, 310 N.J. Super. 382 (Ch. Div. 1998).
