Legal Question in Wills and Trusts in New Jersey

Re: Qualification of an incompetent executor

In brief, if your stepmom (SM) is certifiable as incapacitated, she should not be allowed to qualify. If she has not been formally declared incapacitated, she may qualify but her qualification can be contested. Anticipate that her children might resist any litigation to have her declared incapacitated and removed. You should be made aware that if there is no prior determination of her incapacity, you will need medical experts to examine her and make a determination, so any litigation can be costly and timely. If her condition was known to the attorney, and he allowed this to be done anyway, an ethics complaint may be registered against him, but, again, you will need proof of her incapacity. Whomever is appointed has a fiduciary duty to act for the estate and carry out the terms of the Will, exactly as written, and must account to all named beneficiaries. What I suspect is that the daughters will have the mother claim executor commissions (unless there is something in the Will about this not being done), which follow a statutory formula. This will enable them to get an edge over the other children. Plus, the attorney for the estate gets fees (the statute only says "reasonable", so many attorneys charge a percentage of the estate, rather than actual time spent), which might explain his motivation in having an incapacitated person appointed. Thus, I would carefully inspect the accounting to check on this. Finally, anyone appointed cannot deligate discretionary functions, so while her daughters and/or attorney can assist in many things, they cannot make discretionary decisions, even if the daughters hold a valid Power of Attorney from your SM. If you need more information, contact me directly. This is a respoinse to an Internet question and the reply is not intended to be legal advice or as creating an attorney-client relationship.