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When Probate Was Started But Never Finished

Typical Client: Probate Process Started But Never Finished

One type of case that our firm frequently handles is one in which someone was appointed by the court to act as Personal Representative several years ago. However, they have failed to actually administer the estate, to distribute the proceeds according to the Will and then to close the estate. As a consequence, there is still a house and other assets that have not been sold. (This could happen for any number of reasons. Sometimes, the Personal Representative is actually living in the house rent-free. Or maybe the Personal Representative just does not know how to fix the house up and sell it.)

Our firm is then called by the beneficiaries of the estate wondering when they can expect their inheritance. Section 14-3611 of the Arizona statutes provides for the removal of a Personal Representative in situations like this:

A.R.S. 14-3611. Termination of appointment by removal; cause; procedure.

A. A person interested in the estate may petition for removal of a personal representative for cause at any time. On filing of the petition, the court shall fix a time and place for a hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in section 14-3607, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or to preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.

B. Cause for removal exists under any of the following circumstances:

1. If removal would be in the best interests of the estate.

2. If it is shown that a personal representative or the person seeking the personal representative’s appointment intentionally misrepresented material facts in the proceedings leading to the personal representative’s appointment.

3. If it is shown that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of that office, has mismanaged the estate or has failed to perform any duty pertaining to that office.

4. If it is shown that the personal representative has disregarded the reasonable written wishes of the decedent regarding the disposition of the decedent’s remains.

C. Unless the decedent’s will directs otherwise, a personal representative appointed at the decedent’s domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.

Other common statutory grounds for removing a Personal Representative include that person’s death or disability pursuant to A.R.S. §14-3609, breach of fiduciary duty according to A.R.S. §14-3712 or by voluntary resignation according to the terms of A.R.S. §14-3610. The terms of the Last Will and Testament may also set forth methods to remove a Personal Representative.

After the Personal Representative is removed, we may find that the value of the Estate has been reduced. This was been a common occurrence in 2006-2007 housing market. Take a typical example: Someone was appointed to act as Personal Representative several years ago. That person never put the house on the market and sold it. As a result of the falling real estate prices, the value of the Estate has fallen – and you as an heir (also called a devisee) are now receiving significantly less than you would have otherwise. Is the Personal Representative liable to you for your reduced inheritance? Probably yes.

Once the former Personal Representative has been removed, we can help you (as the heir or devisee) to petition the Court to surcharge the former Personal Representative. This means that the Court would issue a judgment against the former Personal Representative and in favor of the Estate. Sometimes, the Court will order the former Personal Representative to pay your attorney’s fees and costs incurred in prosecuting your claim.