The
Law Offices of Kenneth Vercammen & Associates, handles Probate, contesting
wills, contesting estates, trust mismanagement and theft, Probate disputes,
inheritance problems, estate mismanagement and theft, undue influence, lack of
legal capacity, contentious probates, and other relevant matters. We encourage
you to consult an attorney for a confidential consultation if you are faced
with any of these situations.
Do
you think you're entitled to money or might be entitled to money from an estate
or trust? Do you believe that someone is unfairly claiming money or property
that is rightfully yours? If so, and you are a prospective plaintiff or
defendant, then you may need an attorney to protect your rights.
These
areas are extremely complex, and you should not attempt to reach a decision on
whether or not to take action (and, if so what action to take) without the
assistance of counsel.
You
should call to schedule an in-office consultation.
The
following New Jersey statute sets forth the Powers of Fiduciary/ Executor.
3B:14-23
Powers of a Fiduciary, Executor.
3B:14-23.
Powers. In the absence of contrary or limiting provisions in the judgment or
order appointing a fiduciary, in the will, deed or other instrument or in a
subsequent court judgment or order, every fiduciary shall, in the exercise of
good faith and reasonable discretion, have the power:
a.
To accept additions to any estate or trust from sources other than the estate
of the decedent, minor, mental incompetent or the settlor of a trust;
b.
To acquire the remaining undivided interest in an estate or trust asset in
which the fiduciary, in his fiduciary capacity, holds an undivided interest;
c.
To invest and reinvest assets of the estate or trust under the provisions of
the will, deed or other instrument or as otherwise provided by law and to
exchange assets for investments and other property upon terms as may seem
advisable to the fiduciary;
d.
To effect and keep in force fire, rent, title, liability, casualty or other
insurance to protect the property of the estate or trust and to protect the
fiduciary;
e.
With respect to any property or any interest therein owned by an estate or
trust, including any real property belonging to the fiduciary's decedent at
death, except where the property or any interest therein is specifically
disposed of:
(1)To
take possession of and manage the property and to collect the rents therefrom,
and pay taxes, mortgage interest and other charges against the property;
(2)To
sell the property at public or private sale, and on terms as in the opinion of
the fiduciary shall be most advantageous to those interested therein;
(3)With
respect to fiduciaries other than a trustee, to lease the property for a term
not exceeding three years, and in the case of a trustee to lease the property for
a term not exceeding 10 years, even though the term extends beyond the duration
of the trust, and in either case including the right to explore for and remove
mineral or other natural resources, and in connection with mineral leases to
enter into pooling and unitization agreements;
(4)To
mortgage the property;
(5)To
grant easements to adjoining owners and utilities;
(6)A
fiduciary acting under a will may exercise any of the powers granted by this
subsection e. notwithstanding the effects upon the will of the birth of a child
after its execution;
f.
To make repairs to the property of the estate or trust for the purpose of
preserving the property or rendering it rentable or saleable;
g.
To grant options for the sale of any property of the estate or trust for a
period not exceeding six months;
h.
With respect to any mortgage held by the estate or trust to continue it upon
and after maturity, with or without renewal or extension, upon terms as may
seem advisable to the fiduciary and to foreclose, as an incident to collection
of any bond or note, any mortgage and purchase the mortgaged property or
acquire the property by deed from the mortgagor in lieu of foreclosure;
i.
In the case of the survivor or survivors of two or more fiduciaries to
administer the estate or trust without the appointment of a successor to the
fiduciary or fiduciaries who have ceased to act and to exercise or perform all
of the powers given unless contrary to the express provision of the will, deed
or other instrument;
j.
As a new, alternate, successor, substitute or additional fiduciary or
fiduciaries, to have or succeed to all of the powers, duties and discretion of
the original fiduciary or fiduciaries, with respect to the estate or trust, as
were given to the original fiduciary or fiduciaries named in or appointed by a
will, deed or other instrument, unless the exercise of the powers, duties or
discretion of the original fiduciary or fiduciaries is expressly prohibited by
the will, deed or other instrument to any successor or substitute fiduciary or
fiduciaries;
k.
Where there are three or more fiduciaries qualified to act, to take any action
with respect to the estate or trust which a majority of the fiduciaries shall
determine; a fiduciary who fails to act through absence or disability, or a
dissenting fiduciary who joins in carrying out the decision of a majority of
the fiduciaries if his dissent is expressed promptly in writing to his
cofiduciaries, shall not 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 may not thus be avoided;
l.
To employ and compensate attorneys for services rendered to the estate or trust
or to a fiduciary in the performance of his duties;
m.
To 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, including transfer inheritance, estate, income and other taxes;
n.
To vote in person or by proxy, discretionary or otherwise, shares of stock or
other securities held by the estate or trust;
o.
To pay calls, assessments and any other sums chargeable or accruing against or
on account of shares of stock, bonds, debentures or other corporate securities
in the hands of a fiduciary, whenever the payments may be legally enforceable
against the fiduciary or any property of the estate or trust or the fiduciary
deems payment expedient and for the best interests of the estate or trust;
p.
To sell or exercise stock subscription or conversion rights, participate in
foreclosures, reorganizations, consolidations, mergers or liquidations, and to
consent to corporate sales or leases and encumbrances, and, in the exercise of
those powers, the fiduciary is authorized to deposit stocks, bonds or other
securities with any custodian, agent, protective or other similar committee, or
trustee under a voting trust agreement, under terms and conditions respecting
the deposit thereof as the fiduciary may approve;
q.
To execute and deliver agreements, assignments, bills of sale, contracts,
deeds, notes, receipts and any other instrument necessary or appropriate for
the administration of the estate or trust;
r.
In the case of a trustee:
(1)To
hold two or more trusts or parts of trusts created by the same instrument, as
an undivided whole, without separation as between the trusts or parts of the
trusts, provided that separate trusts or parts of trusts shall have undivided
interests and provided further that no holding shall defer the vesting of any
estate in possession or otherwise;
(2)To
divide a trust, before or after its initial funding, into two or more separate
trusts, provided that such division will not materially impair the
accomplishment of the trust purposes or the interests of any beneficiary.
Distributions provided for by the governing instrument may be made from one or
more of the separate trusts;
s.
To distribute in kind any property of the estate or trust as provided in
article 1 of chapter 23 of this title;
t.
To join with the surviving spouse, the executor of his or her will or the
administrator of his or her estate in the execution and filing of a joint
income tax return for any period prior to the death of a decedent for which he
has not filed a return or a gift tax return on gifts made by the decedent's
surviving spouse, and to consent to treat the gifts as being made one-half by
the decedent, for any period prior to a decedent's death, and to pay taxes
thereon as are chargeable to the decedent;
u.
To acquire or dispose of an asset, including real or personal property in this
or another state, for cash or on credit, at public or private sale, and to
manage, develop, improve, exchange, partition, change the character of, or
abandon an estate asset;
v.
To continue any business constituting the whole or any part of the estate for
so long a period of time as the fiduciary may deem advisable and advantageous
for the estate and persons interested therein;
w.
In the case of a qualified bank as defined in section 1 of P.L. 1948, c.67 (C.
17:9A-1), and an out-of-State bank as defined in section 1 of P.L. 1948, c.67
(C. 17:9A-1), which has established a trust office in this State to purchase,
sell and maintain for any fiduciary account, securities issued by an investment
company which is operated and maintained in accordance with the Investment
Company Act of 1940, 15 U.S.C.s. 80a-1 et seq., and for which the qualified
bank or out-of-State bank is providing services as an investment advisor,
investment manager, custodian or otherwise, including those for which it
receives compensation, if:
(1)The
investment is otherwise in accordance with applicable fiduciary standards; and
(2)The
investment is authorized by the agreement or instrument creating the fiduciary
account that gives the qualified bank or out-of-State bank investment
authority, or by court order; or
(3)The
qualified bank or out-of-State bank provides written notice not less than
annually by prospectus, account statement or otherwise, disclosing to any
current income beneficiaries of the trust the services provided by the
qualified bank or its affiliate or out-of-State bank to the investment company,
and the rate, formula, or other method by which compensation paid to the
qualified bank or its affiliate or out-of-State bank is determined and the
qualified bank or out-of-State bank does not receive a written objection from
any current income beneficiary within 30 days after receipt of this notice. If
a written objection is received from any current income beneficiary pursuant to
this paragraph (3), no such investment of the trust assets of that fiduciary
account shall be made or maintained.
Such
investment shall not be deemed self-dealing or a fiduciary conflict; nor shall
the fact that other beneficiaries of fiduciary accounts of the qualified bank
or out-of-State bank have similar investments be deemed to be an improper
commingling of assets by the qualified bank or out-of-State bank.
For
purposes of this subsection, fiduciary account shall include a trust, estate, agency
or other account in which funds, property, or both, are held by a qualified
bank pursuant to section 28 of P.L. 1948, c.67 (C. 17:9A-28), or an account for
which a qualified bank or out-of-State bank acts as investment advisor or
manager or an account held by an out-of-State bank as defined in section 1 of
P.L. 1948, c. 67 (C. 17:9A-1);
x.
To employ and compensate accountants from the fiduciary fund for services
rendered to the estate or trust or to a fiduciary in the performance of the
fiduciary's duties, including the duty of a corporate or other fiduciary with
respect to the preparation of accountings, without reduction in commissions due
to the fiduciary, so long as such accountings are not the usual, customary or
routine services provided by the fiduciary in light of the nature and skill of
the fiduciary. In evaluating the actions of the fiduciary under this
subsection, the court shall consider the size and complexity of the fiduciary
fund, the length of time for which the accounting is rendered, and the
increased risk and responsibilities imposed on fiduciaries as a result of
revisions to laws affecting fiduciaries including, but not limited to, the
Uniform Principal and Income Act, P.L. 2001, c.212 (C. 3B: 19B-1 et seq.) and
the Prudent Investor Act, P.L. 1997, c.26 (C. 3B:20-11.1 et seq.) provided that
such revisions of the laws affecting fiduciaries were enacted after the
fiduciary responsibilities under the corresponding will, deed or other
instrument, or court judgment or order, were imposed on, and assumed by, the
fiduciary. For purposes of this subsection, Accountant means a person who is
registered as a certified public accountant pursuant to the provisions of P.L.
1997, c.259 (C. 45:2B-42 et seq.), or an accounting firm which is organized for
the practice of public accounting pursuant to the provisions of P.L. 1997,
c.259 (C. 45:2B-42 et seq.) and P.L. 1969, c.232 (C. 14A:17-1 et seq.); and
y.
The powers set forth in this section are in addition to any other powers
granted by law, and by a will, deed or other instrument.
3B:14-24.
Authorization to exercise other powers The court having jurisdiction of the
estate or trust may authorize the fiduciary to exercise any other power which
in the judgment of the court is necessary for the proper administration of the
estate or trust.
3B:14-25.
Payment of debt or delivery of certain personal property; requirements After
the expiration of 60 days from the appointment of a domiciliary foreign
fiduciary, any person indebted to the estate or having possession or control of
personal property, or of an instrument evidencing a debt, obligation, stock or
chose in action belonging to the estate may pay the debt, deliver the personal
property, or the instrument evidencing the debt, obligation, stock or chose in action,
to the domiciliary foreign fiduciary upon being presented with a certificate of
his letters or other proof of his authority and an affidavit made by or on his
behalf stating:
a.
The date of the letters of the domiciliary foreign fiduciary, or the date when
he first received authority to act;
b.
That no letters have issued in this State and no action therefor is pending in
this State; and
c.
That the domiciliary foreign fiduciary is entitled to payment or delivery.
For
Probate and Estate Administration matters, schedule a confidential consultation
with Kenneth Vercammen, 732-572-0500
KENNETH
VERCAMMEN, ESQ.
RECENT
SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
Edison
Adult School -Wills, Elder Law & Probate- 2011, 2007, 2006, 2005, 2004,
2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997 Old Bridge AARP 2002;
Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002; Temple
Beth Or 2002; Hall's Corner/ East Brunswick 2002; -Linden AARP 2002 -Woodbridge
Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/
Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison
2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/
New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge
2001; -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
-Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP
Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points
University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
-East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen
Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick
Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School
& Channel 28 TV 1999, 1997,1993 -Wills and Estate Planning-Old Bridge Adult
School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living
Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and
Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey
State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate
Planning-Edison Elks and Senior Citizens January 1994 -Legal Questions Clinic
Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect
Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and
Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter,
Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May
1992; -Wills and Power of Attorney 1991 Edison Democratic Association Other
Seminars -Automobile Insurance - Middlesex County College - 1990 -Criminal
& Juvenile Courts Piscataway Vo Tech - 1990 Defending Speeding Cases - New
Jersey State Bar Association/NJSBA - 1989 Self Defense and Home Protection -
Speaker - New Brunswick Crime Watch - 1989
New
Jersey State Bar Association -General Practice Section-Board of Directors 1995-
Present
ADJUNCT
PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan.
1990-May, 1991
For
more information, go to http://njwillsprobatelaw.com/powers_of_a_fiduciary.html?id=733&a=
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