by Boyd Johnson on January 7, 2009
The powers of a personal representative in Minnesota are quite broad. The probate code delineates a host of these powers in Minn. Stat. 524.3-715. It is worth taking some time to read through that statute since, if you haven’t, you may discover powers you didn’t know the personal representative had.
Here’s a selection of powers that you may have forgotten about (or ones you didn’t know were permitted):
Satisfaction of Charitable Pledges
(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances
Abandon Property
(11) abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate
Vote Stock
(12) vote stocks or other securities in person or by general or limited proxy
Borrow Money
(16) borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate
Incorporate a Business
(25) incorporate any business or venture in which the decedent was engaged at the time of death
Exonerate the Personal Representative
(26) provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate
Categorized in Practice Tips and tagged as personal representative, powers, probate, probate code
by Boyd Johnson on December 5, 2008
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)).
Categorized in Practice Tips and tagged as appointment, duties, personal representative, powers, probate