Removal of the Personal Representative – The Basics

It’s not uncommon for one or more of the heirs or devisees of an estate to be unhappy with the Personal Representative(s). Sometimes, they have a very good reason to be discontent, but on other occasions I find that decades of family disharmony, jealousy and miscommunication are simply rearing their head again after someone passes away.

If you are not satisfied with the Personal Representative of an estate in which you have an interest, there is something you can do about it so long as you have “cause” for your concern – simply disliking the person or thinking they might be unfair in the future is not enough. Under South Carolina law, a Personal Representative can be removed or restrained by a Petition of anyone with an interest in the estate (this generally means you are an heir under the laws of intestacy, a devisee under the will, or a creditor of the decedent). In order to succeed in this action, you must be able to show the Probate Court that there is legal cause for the restraint or removal. A good probate attorney can listen to the facts and determine if cause exists.

The S. C. Probate Code defines cause as follows: “Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.”

This blog contains several posts that discuss the duties of a Personal Representative and more will follow. Reviewing these duties may help you determine if the Personal Representative has violated them in some way. During my years as the Probate Court Judge, I heard hundreds of actions to remove a Personal Representative. Below are examples of scenarios where I found that cause DID exist:

–       Personal Representative commingled funds by putting all of the estate money in his/her bank account with no records to separate the two.

–       In disbursing the personal effects, Personal Representative (also an heir), gave herself first choice of all items and refused to inventory or appraise items to ensure the distribution was fair.

–       After multiple written requests, Personal Representative continued to fail to inventory the assets of the estate or provide information to the heirs.

–       Personal Representative filed paperwork with the court indicating there were only three (3) heirs of the estate. Testimony was presented that proved she was aware of two (2) additional heirs whom she did not get along with.

–       Personal Representative donated all decedent’s personal effects to Goodwill without providing interested parties an opportunity to receive items of sentimental value.

–       Personal Representative hired her own husband as attorney for the estate and paid him fees significantly above the standard and reasonable fees for his services.

–       Personal Representative falsified the Information to Heirs and Devisees form to the court and attempting to keep the administration of the estate a secret from others.

These are obviously just a few examples. Unfortunately, Personal Representatives often misinterpret their “power” to mean that they are the boss of the estate, when in essence they are serving as an employee to all interested parties. Sometimes, a simple written letter from an interested party will get the Personal Representative back on track. Other times, more extreme measures are necessary. If you have an interest in an estate and feel the Personal Representative is not performing his/her duties as required, consider consulting with an attorney on whether he/she might be restrained or removed. To be successful in the courtroom, legal representation is almost always necessary.

 

Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.

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8 Responses to Removal of the Personal Representative – The Basics

  1. appointin a personal representative can be a good thing and a bad thing depending on the personality of the decedent’s family members.

  2. Michelle Jenkins says:

    Is it possible for a Personal Representative to misuse funds without being aware that they are and if so what are the penalties? Is it the same as misuse? If more than one, does each misuse of funds have its own penalty or is it considered to be an overall misuse of funds?

  3. Lavodio Cobin says:

    How does a PR that is also an heir to the estate determine the way in which the pesonal effects are dispersed, if an argument of “first choice” arises fromt the other heir’s?

  4. Kerry Lauder says:

    I think it is a good thing that you can question the PR of an estate where you are an heir. I wonder how many people don’t know that a PR commingling funds, keeping the “good” items for themselves or even hiring their spouse to be the lawyer are all misuses of their fiduciary duty? It seems to me a lot of these things that a PR cannot do are kind of common sense. Treat others as you want to be treated and life will go a lot smoother!

  5. Kevin says:

    If a suit has been filed in probate court to remove the personal rep, does the personal rep still have the powers given to them in the will until the court removes them as personal rep?

  6. Thanks for the great comment. I have answered your question in a new post entitled Restraint of Personal Representative Pending Removal. Please let me know if this answers your question.

  7. Nice title, Removal of the Personal Representative – The Basics | South Carolina Probate Lawyer, I couldn’t refrain from commenting. Very well written, thanks! I wanted to thank you for your effort.

  8. Cheryl says:

    Unfortunately I am going through this right now. The court has suspended the PR’s letters until the matter is heard in court in a few months. I don’t know how it will all turn out, but for now he will not be able to write himself any more checks at least until the court decides. He also has to give an accounting to the court where and why money was spent. Estate has gone from $109,000 to $54,000 in one year. Only about $10,000 is what appears to be justified expenses. He used his POA after death of principal to close one account, and put his name on another as co-owner. He wrote several large checks to himself and family using POA. Plus a lot more, too much to go into here. But for all of you going through this, you don’t have to put up with it. Spend a few dollars for a lawyer, it will pay for itself in the long run.

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