Tuesday, May 23, 2017

New Jersey Probate & Estate Litigation: Executor’s Power to Compromise, Contest, or Settle Claims

A Last Will and Testament confers 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.

Pursuant to the New Jersey Probate Code, unless otherwise limited by judgment, order, or the governing document, an executor, administrator, or trustee shall have the power “[t]o compromise, contest, or otherwise settle any claim in favor of the estate, trust, or fiduciary or in favor of third persons and against the estate, trust, or fiduciary.” As specifically referenced in the statute, this power also applies to New Jersey Transfer Inheritance Tax, New Jersey or Federal Estate Tax, income or other taxes.

As with the exercise of any power, an executor or administrator must always act “in good faith within the sphere of their powers, and exercise the care, circumspection and judgment of persons of ordinary prudence and sagacity.” Pursuant to New Jersey case law, if the only reasonable action under the circumstances would be to bring action to enforce a claim, the executor is under a duty to bring the action, but, if it is reasonably prudent to pay, release, compromise, or settle the claim, the executor has the power to do so – an executor “may buy the peace of the estate he represents, and extinguish doubtful claims against it, provided he acts discreetly and in good faith.”

In sum, in administering an estate, it is essential that the fiduciary understand the scope of his or her authority, proceed cautiously, 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 administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, 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 removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Probate / Estate Practice Areas:  Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents clients throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Howell, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County (Jackson, Brick, Point Pleasant, Toms River), Somerset County, and Burlington County (Chesterfield).


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