When Should a Personal Representative Be Removed?
When an Ohio resident dies, a personal representative must be appointed to administer their estate. If there was a will, the probate court often appoints the executor named in the will. If the deceased did not have a will, the court will appoint an administrator (typically a close family member) to serve as personal representative of the estate.
The personal representative is a fiduciary — someone obligated to act in the best interests of another party, rather than their own. In the case of a decedent’s estate, this person is obligated to follow the law and act in the best interests of the heirs or beneficiaries of the estate. Most representatives take their fiduciary duties very seriously. Sometimes, though, an executor or administrator commits a breach of fiduciary duty, or there is some other reason they should not continue to serve in that role. Can a personal representative be removed?
Reasons to Remove the Personal Representative of an Estate
For various reasons, a beneficiary of an estate may disapprove of the choice and may seek that person’s removal from the role. Fortunately, while a personal representative of an estate can be removed, they cannot be removed for just any reason.
- Failure to make and file an inventory of the estate as required by law
- Failure to render a just and true account of the administration as required by law
- Habitual drunkenness
- Neglect of duty
- Fraudulent conduct
- Because removing the fiduciary is demanded by the interest of the property, testamentary trust, or estate that the fiduciary is administering
- Any other cause authorized by law
Ohio Revised Code § 2113.18 also specifies that this individual can be removed if there are unsettled claims between the personal representative and the estate or between the representative and persons interested in the estate, if those unsettled claims could lead to litigation. This person can also be removed for failing to bring a wrongful death action on behalf of the deceased if it appears that filing such a claim would be warranted.
So while the probate court cannot remove a personal representative from their role for no reason at all, the court has fairly broad authority to remove a representative for any reason permitted by law if doing so would be in the best interest of the estate. Removal can be for a reason as seemingly minor as failing to file documents with the court on time or as serious as embezzlement or self-dealing.
If you have been appointed to serve as a personal representative of an Ohio estate it is important to work with an experienced Ohio probate attorney to avoid needless mistakes. The guidance of a knowledgeable probate attorney will not only be invaluable should someone petition for your removal, but will make it much less likely that there will be cause for removal in the first place.
The Process for Removing an Ohio Personal Representative
An Ohio probate court may remove this person on its own initiative under some circumstances. However, it is much more common for an heir, beneficiary, or other interested person to file a motion in the probate court requesting that they can be removed from their position.
A motion to remove must state the reason removal is being requested. A hearing on the motion will be scheduled in the probate court, and those interested in the estate must be given notice of the hearing. At the hearing, the court will hear testimony and may receive other evidence regarding the motion to remove the personal representative.
If the probate court determines that removal is necessary to protect the interests of the estate, the court will revoke all letters of authority. The former personal representative will have no legal right to continue acting on behalf of the estate and could be subject to further legal action if he or she tries to do so. Depending on the nature of the grounds for removal, a former personal representative may be subject to personal liability for their actions.
Regardless of whether you are a personal representative trying to carry out your duties on behalf of the estate, or an heir or beneficiary who thinks the personal representative should be removed, you should contact a probate litigation attorney. An attorney experienced in these matters can advise you of your options and may be able to help resolve a conflict short of resorting to the personal representative’s removal. While litigation is sometimes necessary to protect estate interests, it is often preferable to mediate a dispute to preserve estate resources, family relationships, or both.
If you have further questions about how to remove the personal representative of an Ohio estate, or how to respond to a motion for removal, contact an experienced probate litigation attorney for guidance.