Here’s an interesting probate estate administration question that came to my attention. The question involves an executor, a Power of Attorney (POA) and a brother:
This client wants to sell his recently deceased father’s home. Letters Testamentary from the county Surrogate have been issued and client is the authorized executor. He is going overseas for many months and wants to give his brother a Power of Attorney (POA) to sell their father’s home when a buyer is found. The question is can the executor of an estate sign a POA appointing his brother to represent the executor in the sale of their father’s home and/or is there any other document that should be utilized?
Some attorneys believe that NJSA 46:2B-8.8 permits delegation of executor authority where the power of attorney specifically appoints an authorized representative to act on behalf of the estate. But the statute is general by its terms, and it seems it is intended to address only a living principal’s ability to delegate authority to a POA agent if restricted by law. This statute is intended for situations involving living persons, not for decedents’ estates.
There is a case law which disfavors delegation by fiduciaries, such as executors. This concept is sometimes expressed by the ancient legal maxim: a delegate (i.e., an agent) may not delegate. The rationale for this rule is that the Surrogate appoints the executor to hold the specified office of executor. If an executor can delegate the duties and powers of his or her office to another by means of a POA, then the attorney-in-fact has effectively become the executor or executrix even though no letters testamentary have been issued to the attorney-in-fact.
So the question is whether the Legislature, in enacting NJSA 46:2B-8.8, intended to modify the common law rule, so as to permit delegation in cases involving decedents’ estates. Because the statute does not clearly state that the Legislature intended to do so (and there is a rational basis – as explained above – for assuming that it did not) title companies have historically taken the position that they will not accept powers of attorney made by executors, etc. to sign a deed.
I believe NJSA 46:2B-8.8 only allows a principal to delegate powers in the POA instrument to a living person(s).
While title 3B allows a fiduciary (Executor/Trustee/Guardian/Conservator) to appoint investment and management functions, it does specify the power to transfer property, although a guardian of a minor may. It seems that the Legislature reserves all property transfer authority to the appointed Executor. Even in Wills where it is specified that the last serving Executor or Testamentary Trustee, or majority of current income beneficiaries, has the power to appoint the next successor, named or unnamed, the Surrogate must still qualify that person(s)/entity.
To discuss NJ estate administration and probate 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 or telephone 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