LAST WEEK LEGAL Eagle focused on the some of the first duties of the executor. This week, the focus will be on some of the powers of the representative.
Generally, the powers of executors or administrators in the administration and distribution of the estate are extensive. Where power is presumed to be lacking, doubtful or in dispute, recourse must be had to the court but if the parties can agree to a compromise position, the dispute could be settled.
Where it is possible to settle matters between the parties without the intervention of the court, this should be encouraged as the process of seeking directions from the court might be time consuming and costly. This cost, most of the time, must be borne by the estate. Generally, the powers of the representative are derived from the will itself, from common law or statute. These powers must always be exercised in good faith. Some of these powers can be delegated by the representative who may employ lawyers, accountants and other professionals to assist.
Powers in will etc.
If the powers are outlined in the will, there would no difficulty unless the powers conflict with public policy, law or there is a problem with the construction of the will. At common law, most of the powers would now be codified and covered by various statutes.
Power to compromise
The representative has powers to negotiate and compromise claims on behalf of the estate. Provided that the representative is acting in good faith, he may enter into agreements, allow time for payments, pay debt or allow any debt or claim on any evidence. There is also power for one executor to compromise the claim of another against the estate. However, without the approval of the court, there can be no compromise of the claim of an infant.
Power to bring action in court
Similar to the powers of the deceased during his lifetime, the representative has the same powers to bring action to recover property owned by the deceased . The representative may also sue for rent, recovery of possession or to seek orders from the court with respect to any matter that may affect the estate of the deceased.
Power to enter house
The representative has powers to enter the house of the deceased to secure the property of the deceased and also to secure important documents. This must be done without violence. He has a right to secure all pertinent original documents but without breaking any locks or safe to secure these documents. In the event that he is unable to secure property and relevant documents he should resort to action in court.
Power to sell
In order to perform his duty to pay debts and distribute the estate, the representative has a general power to dispose of the personal estate of the deceased.
In some circumstances, the representative may mortgage or lease properties in the estate if the money is required for administration of the estate.
The above are just some of the many powers of the representative but when in doubt, it is always safe to seek guidance and direction from the court.
Keith N. Bishop is an Attorney-at-Law and a partner in the firm of Bishop & Fullerton.