Removal of the Personal Representative

August 29, 2010

Going through probate is especially difficult.  If you are a beneficiary, you were likely quite close with the deceased, and would prefer to have the whole process be over with.  But what if you are having problems with the executor, trustee or personal representative (hereinafter “PR”)?  Can you get rid of the PR?  How?  The process is generally similar throughout the country, but be sure to check the law or with an attorney for the rules in your state.  Here are the major stages:

1.  Look at the Document Itself. First, before you do anything, you might look through the original will or trust document.  There may be clauses that provide a particular procedure you can use for removal.  For example, if the original document included a clause that allowed removal by a unanimous vote by the beneficiaries, you might attempt this avenue first.  However, since the court originally appointed the PR, it ultimately will decide whether removal is appropriate.  Unfortunately, if the court does not agree with you, the PR will be able to ignore the clause and your wishes.

2.  Petition and Trial. The next step would be to file a petition with the local court (where the estate administration is occurring) against the PR.  Make sure all interested parties are served with notice of your petition according to state law.  If you ever reach trial, courts don’t approve removals very often.  Mere hostility between the PR and the beneficiaries is generally not enough for an approval.  Nor is a slow-moving PR or a disagreement with some of the PR’s investment choices.

3.  Court’s Decision. Generally, courts will look at each case on its own merits. However, the following reasons tend to be the most successful:

  • Disqualification – State law will generally provide the grounds.
  • Incapacity – The PR is unable to perform the required duties.
  • Conflicts of Interest – The PR’s personal interests conflict with the estate.
  • Misconduct – Includes fraud, commingling of funds, theft, etc.
  • High Level of Hostility – To the point where it greatly interferes with settling the estate.

4.  Rules in Maryland and Virginia.*

  • Maryland – Maryland law essentially lists the following as grounds for removal.  The PR must have:
    • Misrepresented material facts,
    • Intentionally disregarded a court order,
    • An inability to fulfill his duties,
    • Mismanaged estate or trust property, or
    • Failed to provide a local agent, or to perform material duties.
  • Virginia – The courts here have a bit more discretion.  The VA Code states that the court can remove the PR:
    • If a Clerk’s or Commissioner of Accounts’ report states that the PR should be removed due to incapacity, misconduct, removal from Virginia, or any other reason; or
    • On evidence offered to the court by any interested party.

Finally, remember that the PR was chosen for a reason.  Given the difficulties of success in court as well as dealing with your loss, be sure to seriously consider patience as an option instead.

*–NOTE:  These were my own summaries of the two states’ laws for information purposes only.  Consult a qualified attorney or each State Code directly for precise wording and further details.

 Removal of the Personal Representative

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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