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One aspect of wills which we haven’t discussed too much is the process for either selecting or removing a personal representative. As we know, personal representatives are the equivalent of a trustee for trusts: personal representatives “manage” the will, which means that they oversee the carrying out of all the will’s instructions. Because these representatives have such a heavy burden, testators should always take time and exercise caution when making a selection. No matter how confident you may be about a potential candidate in advance, you should conduct a thorough “vetting process” to ensure that your selected representative will faithfully execute his or her duties once the testator passes.
In addition to implementing a careful selection procedure, testators should also be familiar with the process for removing (and thereby replacing) a personal representative after the testator passes. One reason for this is because understanding the removal process will compel testators to be that much more careful when it comes to their choice: as we will see by examining the case of In re Estate of Bates (2008), removing a personal representative who is already in place is not necessarily an easy hurdle to overcome. Our readers need to know about the removal process so they can exercise appropriate caution in selecting both their primary and secondary representatives.
Let’s examine this case in detail.
Facts of the Case
The personal representative in this case, “Ms. Gurley,” was involved with numerous property related transactions following the passing of the testator (“Naomi Virginia Bates”). One of the interested parties – a beneficiary, Ms. Karim, a daughter of the decedent – filed a petition for removal of Ms. Gurley because of alleged mismanagement: specifically, the petitioner contended that Ms. Gurley had mismanaged property by putting a particular piece of real estate up for sale. Ms. Karim argued that this constituted mismanagement to a degree which warranted removal.
The trial court held that removal was not warranted. Although Ms. Karim obviously found the sale of the real estate to be against her interests, this of itself was not sufficient to justify removal. The case then went before the appellate division (in this case, the District of Columbia Court of Appeals).
Ruling & Post-Ruling Analysis
The D.C. Court of Appeals affirmed the trial court’s determination, holding that no grounds for removal were produced through the handling of the real estate by Ms. Gurley. In its opinion, the appellate court emphasized that removal of a personal representative is generally a high bar to meet: under the applicable statute – D.C. Code Section 20-526(b) – removing a representative is possible, but it can only be achieved under very specific circumstances, such as severe or intentional mismanagement of funds, willful disobedience of a court order, incapacity (i.e. inability to actually carry out the tasks assigned), and so forth. In this situation, although the representative’s decisions may have adversely affected the beneficiary, this alone wasn’t enough grounds to sustain the removal.
Having a skilled attorney in these situations is so critical, because an attorney can assist in assessing the probability of a successful petition to remove a particular representative. The line between the kind of gross mismanagement which might lead to removal and “undesired management” simply because of its adverse impact on one person is often hard to pinpoint. A skilled attorney can review the relevant case law to develop a reasonable path forward and strategy for resolution.
Contact the Murphy Law Firm for Additional Information
For more information on removing personal representatives from a will, drafting a will from scratch, the core sections of a will, establishing trusts, or any other pertinent estate planning matter, contact one of the estate planning attorneys at the Murphy Law Firm today by calling 240-219-1187.
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