If this is the year you’ve committed to putting your estate plan in place, one of the most important decisions you’ll make is choosing your personal representative (commonly known as an executor). This is the person who will be in charge of administering your estate, so it’s critical to give that decision a lot of thought and to make certain the person you choose agrees to do the job when the time comes.
We’ve discussed here in the past what kind of qualities to look for when choosing a personal representative, as well as the importance of naming at least one alternate. However, what if some of your family members aren’t happy with your choice – even (or especially) if it’s another family member? Can they have your personal representative removed or does your choice have to be honored?
That’s a question that concerns a lot of people – particularly if there are serious family conflicts. Probate laws typically give substantial weight to the wishes of the person who creates an estate plan. That goes for their choices of administrators (executors, trustees, those with power of attorney and so forth).
Reasons under the law for removal
Assuming that a personal representative meets the legal requirements of the state and they want to continue in the position, the probate court will not remove them without valid grounds. These grounds involve either serious wrongdoing or the inability to handle the responsibilities. Under the law, these include:
- Intentionally disregarding a court order
- Mismanaging property
- Inability to “discharge the personal representative’s duties and powers effectively”
- Misrepresenting “material facts in the proceedings leading to the personal representative’s appointment”
If one or more of these or other reasons for removal are alleged, the personal representative is entitled to a court hearing where “all interested persons” can present their case. Ultimately, the court is supposed to let them continue in the position if it “would be in the best interests of the estate and would not adversely affect the rights of interested persons or creditors.”
You can see why it’s critical to choose a personal representative who is capable of handling the job and will do so honestly. You can also see why it’s wise to choose an alternate who would likely be appointed as their successor.
If you’re creating your estate plan at a time when you plan to live a lot more years, it’s important to remember that circumstances may change that warrant choosing a more appropriate personal representative down the line. When you partner with an estate planning professional, you can minimize the number of modifications you need to make to your estate plan and help ensure that you make the appropriate changes when necessary.
