We too often get calls from unhappy beneficiaries – usually adult children whose parents have passed away and a sibling serving as personal representative [PR] either is not giving them enough information about the estate or has not distributed estate assets despite the passage of time. Our first response is to explore whether they can work things out with their siblings directly; arguing with and distrusting siblings after a parent’s death can be wrenching. If you get no response or satisfaction, however, the law offers several remedies.
If the problem is lack of communication, a first step may be to file a Demand for Notice with the probate court (assuming that probate has been filed). As a result, you will obtain all of the documents filed with the court, as well as court notices and orders. The form, N-105, is available from the probate court.
A more serious step is to file a Demand for Bond, asking the court to require the PR to file a bond in order to secure the value of the estate assets. The PR will have 30 days to file the bond or can be removed as personal representative. After this demand is filed, the PR cannot take any actions beyond preserving estate assets until she files a bond. This form, DE-502, also is available from the probate court.
Where mismanagement of the estate (or worse) is suspected, it may be wise to file a Petition for Supervised Administration. Supervised administration requires court approval before the PR can distribute any estate assets. You also can seek periodic accountings from the PR and/or license before the PR can sell any estate-owned real estate. The form is Form DE-501.
Another option is to petition the court to prevent the PR from taking a certain action. The court can order the PR to do, or not to do, specific things. A petition can result in a temporary order banning certain actions if you are able to establish that it is needed to preserve your interests in the estate. This petition usually is prepared by an attorney.
The most serious tact is to petition the court for removal of the PR. Causes for removal are: that is in the best interests of the estate, that the PR has misrepresented material facts to gain appointment, that the PR has disregarded a court order, that the PR has become incapable of discharging her duties, that the PR has mismanaged the estate, or that the PR has failed to perform one of her duties as PR. Unless the PR withdraws voluntarily, the court will hold a hearing at which you will have an opportunity to prove why removal is required. This petition also is usually prepared by an attorney.
Finally, if probate hasn’t been filed yet, you can file a petition seeking your own appointment as PR of the estate or seeking probate of the Will/a determination of intestacy. These forms are available from the probate court.
In order to be appointed, PRs must agree to administer the estate in accordance with the law and accept personal liability for any violations of their duties. A PR has a fiduciary duty to the beneficiaries of the estate and must act expeditiously to settle and distribute the estate. PRs who act improperly are liable to the beneficiaries for any damages or losses resulting from a breach of their fiduciary duty.