Estate Planning Newsletter
Replacing an Estate Executor or Administrator
State laws and procedures typically govern the administration of an estate. For this reason, the law varies among jurisdictions. However, in 1969, a “Uniform Probate Code” (Uniform Code) was introduced. Since that time, the Uniform Code has been amended several times and has been adopted, often with modifications, by approximately one-third of the states.
Appointment of a Personal Representative
A will typically designates an “executor,” or one charged with administering the estate. If the executor cannot or will not serve, a court may appoint an “administrator” for the estate. For convenience, state laws often classify both executors and administrators as “personal representatives.” Further, state laws typically set minimum standards for personal representatives (e.g., they cannot be minors). State laws also often create hierarchies to determine which individuals have priority to be appointed as personal representatives.
Once a personal representative has been approved by a court, he will usually be given “letters,” which memorialize his authority to act with respect to the estate. Typically the personal representative will employ an attorney and other professionals to help administer the estate. It is not unusual, however, for those interested in the estate (e.g., heirs, beneficiaries, and creditors) to have concerns regarding the way the estate is being administered. As a consequence, the laws of nearly all states provide a procedure for the removal of offending personal representatives.
Termination of the Appointment: Death, Disability or Resignation
Most jurisdictions have procedures that govern the resignation of personal representatives. Under the Uniform Code, either the death of the personal representative, or the appointment of a conservator for the personal representative, will automatically terminate the appointment. In such cases, however, either the representative of the personal representative’s estate or the conservator must protect the other estate’s assets until a successor is confirmed.
For personal representatives who wish to voluntarily resign, the Uniform Code requires them to file a written statement of resignation with the court clerk, after giving at least 15 days notice to all who are interested in the estate. If no one applies for appointment as successor, the filed statement remains ineffective to accomplish resignation until a successor has been found and qualified, and estate assets are delivered to him.
Termination of Appointment: Removal for Cause
The Uniform Code sets forth specific causes for removal, including:
- “When removal would be in the best interests of the estate”
- Intentional misrepresentation of material facts to gain appointment
- Disregard of an order of the court
- Inability to discharge duties
- Mismanagement of estate
- Failure to perform any duty
- In Florida, adjudication of incompetency of the personal representative; failure to post a bond; conviction of a felony; conflicts of interest; insolvency; and revocation of the will being probated may be cause for removal. Moreover, under certain circumstances, leaving the state without the intention of permanently returning to Florida may be cause for removal.
States that have not adopted the Uniform Code add other causes for removal:
- Illinois law specifies conviction of a felony as cause for removal, in addition to concealing “himself or herself so that process cannot be served” and any “other good cause.”
- In California, cause for removal exists where the personal representative has “wasted, embezzled, mismanaged or committed fraud on the estate, or is about to do so.”
- In New Jersey, cause for removal includes leaving the state or refusing to proceed with administration and perform duties. In addition, cause for removal includes the failure to obey a court order after notice.
Procedure
The Uniform Code allows “any interested person” to petition for the removal of a personal representative. “Interested persons” include heirs, spouses, children, those entitled to property from the estate, creditors, beneficiaries, and others with a property interest in the estate. Once a petition is filed, a time is fixed for the hearing, and the petitioner must give notice to the personal representative. After receipt of the notice, the personal representative “shall not act except to account, to correct maladministration or preserve the estate.”
In states that have not enacted the Uniform Code, procedures may vary. For example, Texas law provides that the personal representative may be removed without notice for reasons including the following: failure to give a new bond where one was required; being absent from the state for a period of more than three consecutive months without permission of the court; or has, or is about to, misapply, embezzle or remove from the State any estate property committed to the personal representative’s care.
In addition, Texas law provides that the personal representative may be removed with notice for various reasons, including failing to obey a court order, or becoming incapacitated, incarcerated, or otherwise becoming “incapable of properly performing the duties of his trust.”
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