Estate planning attorney sitting with client

What if a Personal Representative Fails to Uphold Their Duties?

As a beneficiary or interested party to an estate, the probate process can be particularly frustrating. The personal representative may not be forthcoming with information or with answers to your questions. Probate can take a long time and there can be long delays until you receive any inheritance. The personal representative is a key player in seeing to it that probate goes as smoothly as possible, but what happens when they don’t do their job?

What if a Personal Representative Fails to Uphold Their Duties?

Should a personal representative fail to uphold their duties, there are several things that could happen. First, the probate court may elect to either lower or deny them compensation based on their failings. Second, the probate court may elect to remove them from the role of personal representative and replace them with someone else. In fact, persons with an interest in an estate can petition the court for removal of the personal representative should the circumstances support the need for such action to be taken.

Only interested parties to an estate can petition for the removal of the personal representative. Interested parties include heirs and beneficiaries as well as creditors and other parties. Without a connection to the estate, however, you will not have standing to petition for removal. To petition, you must file a petition for removal with the probate court. This petition must be served on the personal representative. As petitioner you will need to build a case against the personal representative to present to the probate court. This will include presenting the court with testimony and other evidence that would support the removal of the personal representative. A hearing will be held, but it is often the case that the personal representative will volunteer to step down prior to a hearing being necessary.

In addition to docking of pay and removal from their position, a personal representative who has failed to uphold their duties may also be held liable for paying damages they may have caused in their failure to properly manage and administer the estate. Such damages can result from:

  • Improper management of estate assets
  • Failure to collect money owed to the estate
  • Overpayment of creditors
  • Selling assets below an appropriate price
  • Failure to file tax returns for the estate in a timely manner
  • Improperly distributing estate assets
  • Distributing estate assets prior to the payment of creditor claims against the estate

Removal, reduced payment, and liability for expenses incurred by the estate will not always be appropriate, but they are all possible consequences for a personal representative who fails to uphold their duties. Remember, however, that the actions or inactions of the personal representative must rise to a certain level to merit such court action. It will not be enough to simply assert that you have had disagreements with the personal representative.

San Jose Estate Planning Attorney

Having problems with the personal representative of an estate? Talk to the team at BoyesLegal, APC about your options. Contact us today.