Removal of Personal Representative

A personal representative is the person appointed by the court to handle probate. This person is responsible for the following tasks: gathering the deceased person’s property, notifying creditors and heirs or beneficiaries, handling debts and taxes, winding up the deceased person’s final business affairs, transferring the deceased person’s property to the appropriate persons, filing required documents, and closing probate.

Anyone who is 19 or older can serve as a personal representative. A person has priority to serve as personal representative in the following order:  the person named in the will, the spouse of the deceased who receives a gift under the will, anyone who receives a gift under the will, a spouse of the deceased who didn’t receive a gift under the will, an heir of the deceased, and a creditor of the deceased.

A personal representative has the right to prepare and send information to heirs and devisees, apply for an employer identification number, file a fiduciary relationship notice with the IRS, notify creditors with claims against the decedent, pay allowances if appropriate, check with the court for creditor claims at the appropriate time, begin paying debts and creditor claims if the estate has enough property, disallow creditor claims, file an estate tax return if required, file desired disclaimers with the probate court, file an individual income tax return with the IRS, file an estate and trust tax return with the IRS if necessary, transfer all property to the desired persons and have them sign releases, file an accounting with the probate court or have beneficiaries sign waivers, and file a sworn statement to close probate or petition for a final hearing.

The court typically has the power to remove and replace a personal representative for good reason or good cause. The petitioner must show the court that removal is in the best interest of the estate or show that the personal representative is acting wrongly. Examples include:

  • Breach of a fiduciary duty
  • Mismanagement of the estate
  • Embezzlement of funds
  • Incompetency
  • Removal from the state of the estate; or
  • Neglect of the estate. 

A personal representative could also be removed for non-fault reasons, such as by becoming seriously ill or dying.

The personal representative can act without the court’s approval, but he or she is required to keep the court informed of his or her progress by filing the necessary documents. If an interested person is unsatisfied with the personal representative, he or she can bring up these concerns in court, petition the court to remove the personal representative, or request supervised administration. This constitutes the highest level of court oversight and is typically granted only in extreme situations. The court will schedule a hearing on the petition, and the petitioner must give notice of the hearing to the personal representative. The petitioner can also petition the court for a temporary restraining order to stop the personal representative from doing a certain act.

Before attempting to remove a personal representative, it is best to talk to a probate lawyer.