By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Probate Estate Administration Attorney and Law Firm
In our last post about finalizing an estate, I discussed several key obligations that New Jersey estate and probate laws placed upon an executor or administrator regarding formal accountings. Today let’s examine what takes place before the Court on the return date of the Order to Show Cause to approve a final accounting.
On the return date of the Order to Show Cause, the Court will listen to arguments by the parties regarding the accounting and any exceptions filed against the accounting. If necessary, the Court will take testimony. If the dispute is significant enough, the Court, at its discretion, will enter a discovery schedule involving interrogatories and depositions by the fiduciary and/or contesting beneficiaries. A date will be entered for a plenary hearing whereupon the probate judge will decide to accept or reject the accounting in its entirety or in part.
As part of the Court’s decision-making, the judge will decide the appropriateness of awarding fiduciary commissions, legal fees and costs incurred by the fiduciary. Although such fees are typically paid by the estate, the Court does have discretion to modify the Executor’s fees and can adjust the reasonableness of legal fees and costs.
Additionally, the Court can determine which party should be responsible for the payment of such fees and costs. Although fees and costs are typically paid by an estate, the Court can surcharge the Executor or Administrator if there exists evidence of gross negligence or fraud (“surcharge” means “punish”). Conversely, the Court can surcharge the opposing party for legal fees and costs incurred by requesting an accounting if the Court finds that the proceedings were generated in bad faith.
To discuss your NJ probate or estate administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.