Can a nominated personal representative perform acts on behalf of the estate prior to his appointment? Under Minnesota Stat. 524.3-701, the answer is yes, but it carries risk.
The statute states that the powers of a personal representative “relate back in time to give acts [performed] by the person appointed. . . the same effect as those occurring” after the appointment provided the acts are “beneficial to the estate.”
But what if the nominated personal representative is somehow disqualified and does not become appointed? This is the risk that a nominated personal representative takes in acting before he is appointed. Recall that until a person is appointed, he really has no authority to act on behalf of the estate. The exception in the statute is that a person named “executor” [sic] in a will may carry out the written instructions of the decedent regarding funeral and burial arrangements.
Even if the nominated personal representative is not ultimately appointed, the appointed personal representative can ratify and accept acts performed by others on behalf of the estate so long as the acts would have been proper for the personal representative to perform. [See footnote below.]
Even so, why risk it? If the situation is such that action must be taken, obtaining the appointment of a special administrator is probably a better choice.
Footnote: The statute could be read to limit the personal representative’s ability to ratify acts to those occurring after the personal representative’s appointment. In this view, the statute essentially authorizes delegation. The better view, in my opinion, is that the statute allows ratification of acts regardless of when they occurred since powers of delegation are explicit elsewhere in the Probate Code (e.g. 524.3-715(21)).
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