The position of personal representative is a fiduciary position of great trust and responsibility. It is also an office that one can be stripped of by the probate court if they fail to act with care as to the estate’s assets or do not comply with their statutory duties. Any “interested person” may petition the probate court for removal of a personal representative at any time for cause. An interested person, according to MCL 700.1105(c) “includes, but is not limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person.”
Once notified of removal proceedings, the personal representative shall not take any further action with the estate (except to account, to correct maladministration or to preserve the estate) until said proceedings are concluded. According to MCL 700.3611, the probate court may remove a personal representative under any of the following circumstances:
- Removal is in the best interests of the estate.
- It is shown that the personal representative or the person who sought the personal representative’s appointment intentionally misrepresented material facts in a proceeding leading to the appointment.
- The personal representative did any of the following:
- (a) Disregarded a court order.
- (b) Became incapable of discharging the duties of office.
- (c) Mismanaged the estate.
- (d) Failed to perform a duty pertaining to the office.
Here are some circumstances where removing a personal representative was appropriate:
- In re Estate of Washington, unpublished per curiam opinion of the Court of Appeals, issued October 9, 2003 (Docket No. 233829) – The Michigan Court of Appeals held the probate court did not err in removing a personal representative where she tried to admit a last will and testament to probate despite knowledge that a more recent document existed naming a different personal representative. The personal representative provided no evidence that the more recent document was the result of mental incapacity, undue influence, fraud, duress, mistake or revocation. It is proper to remove a personal representative when they sought an appointment to the position based on intentionally misrepresented materials (e.g. a knowingly revoked last will and testament).
- In re Estate of Wetsman, unpublished per curiam opinion of the Court of Appeals, issued September 20, 2012 (Docket No. 292350) – The Michigan Court of Appeals held the probate court did not err in removing a personal representative where he had a significant conflict with an heir, falsely denied knowing about the conflict and took advantage of his position to deprive that heir of certain assets. Additionally, the personal representative (a lawyer) continued to attempt to make ex parte communications with the judge about the case to influence him despite warnings from the court’s staff to cease.
- In re Estate of Erwin, unpublished per curiam of the Court of Appeals, issued May 10, 2016 (Docket Nos. 323387, 329264) – The Michigan Court of Appeals held the probate court did not err in removing a personal representative when conflict ACTUALLY interferes with his statutory duties. While family conflict or disagreement alone is not a basis to remove a personal representative, it affected his statutory duties when he refused to provide an accounting to an heir upon request.
Here are some circumstances where removing a personal representative was not appropriate:
- In re Estate of Kramek, 268 Mich App 565; 710 NW2d 753 (2005) – The Michigan Court of Appeals held the probate court erred in removing a personal representative to reduce “bickering” and replace with someone with “no interest” and “no conflict” to “won’t cost the estate all this money”. There was no legitimate basis to remove the personal representative because disagreements on settlement terms is an ordinary occurrence and resolving such disputes is a normal function of the probate court. Even in contested proceedings, it is normal for an heir or devisee to serve as personal representative and, therefore, there is no conflict of interest merely because there is dispute to the settlement terms.
- In re Estate of Baldwin, 274 Mich App 387; 733 NW2d 419 (2007) – The Michigan Court of Appeals held the probate court did not err in failing to remove a personal representative on the motion of a creditor, an interested person. The creditor alleged that the personal representative breached his fiduciary duty to creditors of the estate by contesting and denying his claim in circuit court litigation. A personal representative is authorized by MCL 700.3715(x) to “[p]rosecute or defend a claim or proceeding… for the protection of the estate and of the personal representative in the performance of [his] duties”. There was no evidence that the personal representative disregarded a court order or mismanaged the estate, and the Court of Appeals held the personal representative did not owe a fiduciary duty to creditors.
- In re Estate of Ward, unpublished per curiam of the Court of Appeals, issued January 9, 2018 (Docket No. 335438) – The Michigan Court of Appeals held the probate court did not err in failing to remove a personal representative when he proceeded with selling real estate despite the automatic stay in effect when an appeal challenging the validity of the will was pending. The wording of the order was that “proceedings” were stayed but it was unclear whether that was applicable only to legal court proceedings or all estate administrative activities, including the sale or disposition of estate assets. The personal representative sought the guidance of the probate court before taking action, so he therefore exercised prudence in his actions that did not constitute mismanagement or a breach of fiduciary duty.
Of course, seeking to remove a personal representative from their position can be risky if the evidence is weak. “If a personal representative or person nominated as personal representative defends or prosecutes a proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.” MCL 700.3720. If there is no conflict of interest or wrongdoing proven against the personal representative, then his attorney fees for defending against the litigation are properly chargeable against the estate. In re Humphrey Estate, 141 Mich App 412; 367 NW2d 873 (1985). In short, the heirs could be footing the bill from their inheritance to pay the personal representative’s attorney for defending against a removal action.
A personal representative occupies a position of honor and trust and should be held to the highest standards. However, mere disagreements or family conflict is not enough to remove a personal representative from office. Probate litigation can be expensive for the heir personally and can be a drain against estate resources that supply inheritances and payments. It is important to be properly advised in the merits of your case before instituting a removal action in the probate court. If you are an interested person contemplating the removal of a personal representative, or you are a personal representative forced to defend against such an action, do not hesitate to contact the experienced probate attorneys at Kershaw, Vititoe & Jedinak PLC.