Friday, March 4, 2016


By: Justin M. Smigelsky, Esq.

Pursuant to New Jersey statute, the duties and power of an executor or administrator commence upon his or her appointment. In the event that the individual acts on behalf of the estate prior to appointment, he acts at his own risk; however, if the acts are beneficial to the estate, such power may relate back in time to ratify said acts.
All wills executed after September 4, 1968, confer upon every executor thereunder, in the absence of a contrary provision in the will or in a court order, a wide-ranging set of administrative powers authorizing him or her so to act, provided he or she acts in good faith and with reasonable discretion. Sometime, however, the testator may wish to limit, modify, or enlarge the powers conferred upon the executor – of course, if an individual passes away intestate (without a Last Will and Testament), this is not possible.

Therefore, in accordance with N.J.S.A. 3B:14-23, unless otherwise limited by judgment, order, or the governing document, an executor or administrator shall have several powers including, but not limited to, the following:
  • To employ or compensate attorneys from estate funds for services rendered to the estate or to the fiduciary in performance of his or her duties;
  • To employ and compensate accountants from estate funds for services rendered to the estate or to the fiduciary in the performance of his or her duties;
  • To accept additions to the estate from sources other than the estate of the decedent;
  • To invest and reinvest assets of the estate in certain instances;
  • To effect and keep in force fire, rent, title, liability, casualty, or other insurance to protect estate property;
  • To take possession of, manage, sell, lease, or mortgage property owned by the estate, unless the property or any interest thereof is specifically disposed of;
  • To make repairs to estate property;
  • To execute and deliver agreements, assignments, bills of sale, contracts, deeds, notes, receipts, and any other instrument necessary or appropriate for the administration of the estate; and
  • To compromise, contest, or otherwise settle any claim in favor of the estate or fiduciary, or in favor of third persons and against the estate, including New Jersey Transfer Inheritance Tax, New Jersey and Federal Estate Tax, income and other taxes.

Additionally, the court having jurisdiction over the estate may authorize an executor or administrator to exercise any other power, or to disclaim any other power, if the court determines that such authorization is necessary for the proper administration of the estate.
In sum, in administering an estate, it is essential that the fiduciary understand the scope of his or her authority and, as permitted by statute, that the fiduciary retain an experienced attorney in the event he or she has any questions or concerns as to whether he or she is taking an appropriate course of action.

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.


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