By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Law Attorney
I have often written about discouraging the appointment of co-executors, co-administrators, co-powers of attorney, co-trustees, co-guardians, etc and other positions of responsibility and performance. Admitably there are times when co-appointments make sense or are unavoidable but generally I am not in favor of such a decision. In this post I offer you a good example about why I feel this way.
In a recent case Mom died and all 3 of her children were appointed as co-executors. One child has health issues and can’t participate in the administration of the estate but has given one of the co-executors his individual Power of Attorney (POA). The issue now is whether the other 2 children must act as executors by majority vote. Does the sick child need to resign all together even though he doesn’t want to?
Well, the easiest way to approach the issue is to ask the Surrogate or the Deputy Surrogate for the County where the will is probated. I question whether the role of being an Executor can be delegated through the use of POA. The Surrogate probably will have an opinion on that as well.
N.J.S.A. 3B:10-32 provides that if one or more persons are nominated as co-personal representatives all those who are appointed may exercise all of the powers incident to the office. If the ill child cannot fulfill the duties of an Executor, then the Surrogate probably won’t accept the nomination. However, there is usually a means to fulfill the duties that even an ill person can accomplish. There is no reason the ill child can’t just sign off on everything. Otherwise it seems to me that the only resource is for his resignation and then there will be two co-executors to act by majority vote. (effectively by unanimous contest)
But beware of being a party to multiple representatives. N.J.S.A. 3B:14-23 provides that where there are three or more fiduciaries qualified to take any action with respect to an estate or trust a fiduciary who fails to act through absence or disability, or a dissenting fiduciary who fails to express promptly in writing to the co-fiduciaries, his or her disagreement with a majority decisions will be liable for the consequences of any majority decision, provided that liability for failure to join in administering the trust or to prevent a breach of trust could have been avoided.
My reading of N.J.S.A.3B:14-23 definitely allows a majority to act, BUT it can penalize the non participating executor (personal representative) if the consequences cause liability. In other words, if there is a bad outcome the non participating executor can be held legally liable.
To discuss your NJ Estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.