When Should the Personal Representative of an Estate Be Removed?
A personal representative (PR) of an estate is in a position of trust. The PR is the person appointed by the probate court to manage and distribute a deceased person’s (decedent’s) estate. The PR may be an executor named in a will, or someone selected by the court if there was no will. In either case, the PR is a fiduciary: someone entrusted to manage the estate in the best interests of another party. Most of the time, personal representatives carry out their duties diligently and capably. Unfortunately, in some cases they may not fulfill their obligations, either due to negligence or intentional misconduct.
Should the Personal Representative of an Estate be Removed?
That can be a sensitive question. Often, the personal representative is a family member, as are the other heirs or beneficiaries of the estate. Taking steps to remove the PR can have long-lasting effects on relationships, potentially causing permanent rifts between family members. On the other hand, if they are not doing their job properly, the rights of heirs and beneficiaries could be negatively affected, and the issue should be addressed.
Whether you are a PR, or someone who is dissatisfied with the job a PR is doing, it is important to understand when and why a personal representative can be removed in Michigan.
Considerations for Removal
It is easy to imagine a situation in which an interested person (usually an heir or beneficiary, but occasionally a creditor) might legitimately want a personal representative removed. The PR might be embezzling from the estate, or simply neglecting their duties and failing to administer the estate as the law requires.
It is also easy to imagine a situation in which an heir might try to get a PR removed for reasons that are less than honorable. For example, if one family member had personal conflicts with the person who was appointed as PR, that hostility might motivate them to seek the PR’s removal.
It can be difficult to tell in some situations whether the personal representative really ought to be removed or if there are other factors at play. The State of Michigan provides a mechanism by which a PR can be removed from their position, but also requires that someone seeking the removal of a PR provide substantial evidence in support of the removal.
According to Michigan Compiled Laws Section 700.3611, an interested person “may petition for removal of a personal representative for cause at any time.” If a person petitions the court to remove the PR, the PR and other interested persons must receive a copy of the petition as well as notice of the hearing the court ha scheduled on the petition. Filing a petition for removal will limit the PR’s ability to act on behalf of the estate until the petition is addressed.
What is “cause” to remove a personal representative? The statute goes on to state grounds for removal:
- Removal would be in the best interests of the estate
- The personal representative or the person who sought the PR’s appointment intentionally misrepresented material facts in a proceeding leading to the appointment (an example would be a PR who submitted an old will to probate despite knowing there was a more recent will that named a different person as executor)
- The PR disregarded a court order, became incapable of discharging the duties of office, mismanaged the estate, or failed to perform a duty pertaining to the office (such as failing to provide an accounting of estate assets and debts to an heir when requested to)
An interested person may be able to find one or more grounds to petition for removal. However, if you are considering filing a petition for removal of a PR, you should be aware that doing so can be costly, financially as well as in terms of family harmony.
Petitioning for Removal of a Personal Representative
If you think a personal representative to an estate isn’t doing their job, you need to decide whether to petition for their removal. You should consult an experienced Michigan probate litigation attorney to determine whether a petition for removal is the best option in your situation. There may be alternatives, such as probate mediation, that can help you resolve your concerns in a less contentious way.
In addition, even if you are successful in removing the PR through court action, it may cost you financially in the end. Michigan Compiled Laws Section 700.3720 states, “If a personal representative or person nominated as personal representative defends or prosecutes a proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.”
In other words, as long as the PR defends against the petition for removal in good faith, the estate may have to pay his or her attorney fees and other costs of the litigation. The funds that are used to pay the PR’s attorneys fees would otherwise have been distributed to the heirs and beneficiaries of the estate.
Probate Litigation Attorney Serving Washtenaw County
If you have questions about whether a personal representative of an estate can or should be removed from their position, or if you are a PR threatened with removal, contact Suzanne R. Fanning, PLLC to schedule a consultation. We will work with you to resolve your concerns regarding the estate in a way that minimizes disruption of relationships and loss of estate funds, including litigation if necessary.