A court may compel someone who served as a Power of Attorney on behalf of another to account for monies expended during the time he or she held the Power.- A former Power of Attorney and Executor can be compelled to provide an accounting (in a form and manner to be determined by the court) of all transactions involving estate accounts – including accounts jointly held with a spouse – during the time in which he or she held a Power of Attorney through the date of death.
Often, the Executor of an estate and the former holder of a Power of Attorney during life fails to provide even the most minimal information to family members and beneficiaries about assets – including pre-death transfers from accounts – or the status of the estate. This failure is contrary to his or her obligations as holder of a Power of Attorney and as Executor.
As a matter of law, an Executor or trustee of a trust owes a fiduciary duty to the beneficiaries of the estate or the trust, respectively.” “An Executor has a fiduciary duty to act in the best interests of all the beneficiaries under the Will.” “The most fundamental duty owed by an Executor to the beneficiaries is the duty of loyalty, and the Executor is obligated to deal impartially with all beneficiaries.” An Executor cannot use his/her position to further his/her own personal interests.” Similarly, one who is both a Power of Attorney for another and is designated the Executor under that individual’s Last Will owes a fiduciary duty to the estate and to the estate’s beneficiaries.
Fiduciaries of an estate are required to disclose information pertaining to an estate’s assets both to the court and to the estate’s beneficiaries. In that regard, N.J.S.A. 3B:16-2 states that a personal representative may be required by the court to “make and file a true inventory of the real and personal property of his decedent, which has come to his or hands, or into the hands of any other person and cause an appraisal to be performed by two impartial persons.”
Moreover, a court in equity has the ability to impose upon a Power of Attorney whatever equitable remedy it deems necessary when there is a dispute. A judge sitting in a court of equity has a broad range of discretion to fashion an appropriate remedy in order to vindicate a wrong consistent with principles of fairness and the law.
To discuss your NJ estate administration or probate litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration and Probate Attorney