A New York Fiduciary such as an Executor or Administrator is appointed by the Surrogate’s Court after a person has died. As discussed in many posts in the New York Probate Lawyer Blog, an Executor is appointed as an estate representative when a Last Will has been probated. The Executor is typically nominated or named in the Last Will. Sometimes the Court may need to appoint an estate representative who is not named in the Will. In such case, the title of the appointee is Administrator c.t.a.
An Administrator c.t.a. should not be confused with the typical appointment of an Administrator which occurs when a person dies intestate or without a Will. In these situations, the decedent’s distributees are entitled to be appointed in accordance with the statutory priority set forth in Surrogate’s Court Procedure Act (“SCPA”) Section 1001.
As talked about in prior posts, an estate fiduciary has many duties and obligations. At the core of a fiduciary’s responsibilities is to determine and collect the decedent’s assets, pay debts, expenses and taxes and distribute the net estate to the Estate Beneficiaries. In order to facilitate these functions an Executor and Administrator has many powers. Many of these powers are listed in New York Estates, Powers and Trusts Law (“EPTL”) Section 11-1.1 entitled “Fiduciaries: Powers, Duties and Limitations”. For example, this statute authorizes a fiduciary to invest estate assets, maintain insurance, collect rents, sell property and make repairs to property.
All fiduciaries accept the fact that they have a great deal of responsibility. Depending upon the size and complexity of an estate, acting as a fiduciary can be a very time consuming job. Many of the tasks that need to be performed can be facilitated by a New York Estate Lawyer. When representing a New York Fiduciary, I routinely help a client collect estate assets and determine debts and obligations that need to be paid. However, there is no substitution for actual involvement and hands-on functions in Estate Settlement by the personal representative. Such obligations may be particularly demanding when the fiduciary lives out of state or in a foreign country. Out-of-State fiduciaries cannot provide a substitute for the many of the jobs they must perform.
A fiduciary cannot delegate his authority to someone else. He cannot give a Power of Attorney to anyone to perform the jobs that he is required to do. Thus, if a closing for the sale of real estate is to occur, the fiduciary is the only person with the authority to sign the deed and other transfer papers. The Executor or Administrator must either attend the closing or arrange to have all the necessary papers signed prior to the closing date and delivered when the deed is transferred. The fiduciary must also sign the Contract of Sale.
The prohibition against a fiduciary delegating his authority was recently recognized by the Court in Garmon v. County of Rockland, a case decided by U.S. District Court Judge Andrew Carter on February 11, 2013 and reported in New York Law Journal on February 22, 2013. In Garmon, the decedent had been arrested and died in police custody. Thereafter, the decedent’s daughter was appointed by the Surrogate’s Court as the Administrator of his estate. The daughter then executed a Power of Attorney in favor of the decedent’s father who then started a lawsuit to recover for the wrongful death of the decedent. The Court, however, dismissed the father’s lawsuit finding that the father was not the Estate Administrator and, therefore, did not have the authority to act on behalf of the decedent’s estate. Moreover, the Court found that the Power of Attorney was ineffectual since the daughter, as Administrator, could not delegate her duties regarding Estate Administration.
I have represented many Estate Executors and Administrators and assisted them with performing the various tasks associated with their responsibilities as a fiduciary. While a New York Estate Attorney cannot act in the place and stead of his client, I try to facilitate and expedite the Estate Settlement process so that my clients can fulfill their jobs as efficiently as possible.
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