Thursday, February 25, 2016


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.  

  1. Justin M. Smigelsky, Esq. is an Associate with Timothy J. Little, P.C., with offices in Woodbridge and Chesterfield, New Jersey.
  2. N.J.S.A. 3B:10-23.
  3. In re Cook’s Will, 35 Backes 123 (Prerog. 1945).
  4. See In re Matter of Wold, 310 N.J. Super. 382 (Ch. Div. 1998).

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