07 Dec Mom died. Can my sister hire an attorney to manage the estate?

Q. My mother passed away and my sister was the executor and the administrator of the estate. Without letting the beneficiaries know, she made her attorney the executor of the estate. But the will stated that the administrator does not get paid for doing paperwork on the estate. What can we do?
— Concerned beneficiary

A. First, you said your sister was the “executor and the administrator of the estate.”

A person cannot be both the executor, which is named in a decedent’s will, and an administrator, which is appointed when a decedent dies without a will, said Tom Szieber, a trusts and estates attorney at Herold Law in Warren.

Given that you referenced a will, we will assume you’re describing an executor but erroneously using the terms “executor” and “administrator” interchangeably.

You next said that your sister, without telling the beneficiaries, made her attorney the executor of the estate.

“If this occurred exactly as the questioner says it did — that is, the sister/executor `made’ the attorney the executor — it likely did so pursuant to a provision in the will granting the questioner’s sister the authority to appoint one or more successor executors,” he said. “Without such power, the sister could not have `made’ the attorney the executor. Only the court would have such authority.”

Alternatively, Szieber said, it is possible that your sister did not actually make her attorney the executor of the estate, but rather hired the attorney to assist in the administration of the estate. The authority to do so might be, and often is, included in the will, he said.

Neither scenario is conditioned upon notice to or consent from the beneficiaries, he said.

If the attorney is the executor, N.J.S.A. Section 3B:18-14 permits the attorney to collect a commission unless a beneficiary who has been adversely affected could show that the attorney/executor’s administration of the estate was “materially deficient” or that “the actual pains, trouble and risk of the fiduciary in settling the estate were substantially less than generally required for estates of comparable size,” Szieber said

“If the attorney was simply hired by the sister/executor as counsel, then the attorney would be entitled to compensation for his or her services,” he said.

You should speak to an attorney if you want to investigate further with someone who can look closely at the will and the status of the estate.

Email your questions to .

This story was originally published on Dec. 7, 2021.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.