Executor can not give Power of Attorney to Co Executor

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Executors of decedents’ estates are termed “fiduciaries.”  As such, they are obliged to act in a prudent manner with due regard to the concerns of both creditors and beneficiaries.  They have an obligation to use their good judgment and discretion in carrying out their responsibilities as executors.  Indeed the appointment of an executor in a Will is not the final say.  The Surrogate has oversight power and if reason is shown may disapprove of the appointment.  Furthermore the testator in a Will has chosen people to act as executor for a reason, to wit, the testator has confidence in the decision making of the proposed appointee.

Once someone has accepted the job as a fiduciary, it would be inappropriate to hand off that job to another-even the co executor or co-fiduciary.

In a matter brought before one Surrogate in New York, the court was asked to file a power of attorney allowing one executor to act for the other executor.  The reason offered was that one executor “travels extensively and is frequently unavailable to execute documents.”  And further “ that the primary purpose of the Power of Attorney is to allow me to conduct my executorial duties without having to physically send documents to my Co-Executor for execution.”  Noble as that reason may be, the Surrogate correctly determined that the use of a power of attorney does not obviate the need for both the executors to execute documents.  The use of a power of attorney can not avoid the full responsibility and participation of both executors.  There did not, however, appear in the case an attempt to avoid liability as an executor. 

The court determined that if the fiduciary could not fully serve, the fiduciary could petition the court for permission to resign.  That’s right, a fiduciary needs permission to resign.  There must be a reason given and I guess being unavailable to execute documents could be such a reason but that was never the issue before the Surrogate.

NOTE: There is a lesson in all of this.  If you need or desire to appoint more than one fiduciary, and you wish to allow them to be able to act separately and to bind the estate, all you need to do is say so in the Will or Trust used.  Or, you can have one fiduciary handle one job and the other have certain other duties.  For example, one fiduciary can be in charge of investments and the other more personal matters. 

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