Removing a Personal Representative or Trustee
December 2009
A common probate problem occurs when a personal representative of an estate, or a trustee of a trust, is not performing his or her duties. The personal representative or trustee can be removed so long as there is a good reason.
For example, I have numerous cases where the estate has been open for many months or even years because the personal representative does not close the estate. Often times the personal representative will move into the deceased person’s home, live there rent-free, while refusing to sell the home. Until the home is sold, the estate cannot be closed and the beneficiaries who do not live in the home cannot receive their inheritance.
Here is an all-too-frequent fact scenario:
1. Mom or dad dies, leaving the family home to their four adult children
2. Child 1, who lived in the home before the parent’s death, is appointed personal representative. As personal representative, Child 1 must sell mom’s house and split the sales proceeds among the four children.
3. Child 1 does not sell the home, because selling the home means Child 1 will have to find a new place to live.
4. Months or years go by without any progress in the estate (while Child 1 lives rent-free in the home).
5. Children 2, 3, and 4 never receive their inheritance.
6. Eventually, Child 2, 3, or 4 consults a lawyer and starts the process to remove Child 1 as personal representative and finally close the estate.
A personal representative or trustee can be replaced for many reasons, so long as removing the person will benefit the estate or trust. The removal process begins by filing a petition with the probate court, followed by a hearing before a probate judge or commissioner. The process is much easier if the ineffective personal representative or trustee (Child 1 in the example above) elects not to contest the removal process.
If you find yourself in this situation, see a lawyer as soon as possible. My clients always wish they had come to me sooner. Unfortunately, the potential for financial loss caused by personal representative’s failure to timely sell a home (or other assets) has increased in Arizona the last few years.
For example, I recently replaced one personal representative who had not sold the family home even though its owner died in 2006. If the home had been timely sold around the time of death, it could have sold for approximately $250,000.00. By the time my client approached me in 2009, the Arizona’s real estate market had sharply declined (and the personal representative in this case had neglected the home’s maintenance) so much that the home sold for $90,000.00. The personal representative’s failure to timely sell the home cost the beneficiaries of the estate approximately $160,000.00.
I have also frequently seen cases where the personal representative or trustee uses the deceased person’s assets, such as bank accounts, as their own, keeping the money for their personal benefit rather than distributing the money to the beneficiaries.
If you are expecting an inheritance, keep a close eye on how the probate is progressing and do not be afraid to retain your own attorney. Your lawyer’s ability to protect your interests is greater the sooner you visit them. Feel free to contact us if you need help removing an ineffective personal representative or trustee.
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Brian Starr is the founder of the Phoenix law firm of Starr Law Firm, PLC You may contact Brian at 602-795-0700. For more information, go to www.starrlawfirm.net.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.