Legal Solutions

Removing an estate executor or administrator

On Behalf of | Jul 13, 2021 | Probate

Becoming an estate representative, as either an executor or administrator, requires a great deal of personal responsibility. Ensuring an estate is disposed of properly, in accordance with the deceased’s wishes, can make demands of a representative beyond their capabilities. When the situation reaches a point where a representative should no longer retain his or her position, the court can step in and remove them.

Removal without notice

Sometimes, the court can remove a representative with no prior notice required. Often, this is for procedural reasons, such as the representative failing to qualify for the role in the time and manner required by law. Or by failing to provide a bond ordered by the court or returning an estate inventory to the court within the required time.

Removal may also be appropriate if the representative becomes unavailable. Leaving the state without the court’s permission, for an extended period of time, or moving out of state could be grounds for removal. Justification can also be found if the representative cannot be served, such as if the representative cannot be located or is avoiding service entirely.

Finally, if clear and convincing evidence is presented to the court, under oath, that the representative has misused or will misuse estate assets, the court may remove them with no prior notice.

Removal with notice

If there is a belief that the representative has misused estate assets, but the evidence is not clear and convincing, the representative must first be notified prior to their removal.

Other examples of conduct requiring notice include failing to return an accounting of the estate required by law or failing to obey an order of the court regarding the performance of the representative’s duties.

If the representative becomes incapacitated or is sentenced to a penitentiary, the court may remove them with notice. And beyond these specific examples, any other thing which makes the representative incapable of performing their duties to the estate can be grounds for removal.

All of the above examples for removal may be instigated by the probate court. However, they may also be initiated by a third party who applies to the court for removal of the representative.