December 12th, 2013
When a person names a friend or relative as a fiduciary in one instrument, it should come as no surprise if that person also names the same friend or relative as a fiduciary in another instrument. Thus, the same person may be named executor, trustee, and attorney-in-fact.
Since we know that an executor is expected to marshal estate assets, we know that an executor may be called upon to investigate pre-death transactions to determine whether the assets that were the subject of those transactions should really be part of the estate. Sometimes that requires a lawsuit to recover those assets. So, what happens when one person, acting under a power of attorney, engages in a transaction that estate beneficiaries claim was improper? If the attorney-in-fact is also the executor, how can that person be called upon to investigate him or herself? In In re: the Estate of Maria Louisa Coutermarsh, the Georgia Supreme Court considered a probate court‘s resolution of that issue. (more…)