In the last few posts, we’ve looked at the first two steps in removing an ineffective personal representative: gathering evidence and petitioning the court. Once these steps are completed, you will need to appoint a successor. You’ll want to be particularly careful in choosing a qualified replacement after going through the effort to remove an ineffective personal representative.
If you think you can do a better job yourself than the person who had been personal representative, think twice. Before nominating yourself for the position, you should understand the responsibilities and duties of a personal representative. While you may be qualified to fulfill the role, it may be more than you really want to deal with.
Serving as a personal representative in an estate is time-consuming and requires great attention to detail. You will need to work closely with both your probate attorney and a CPA to make sure that everything is done properly. This includes the inventory of the estate, detailed recordkeeping, annual accountings of the estate, and other details that you might not have considered.
Here are a few criteria to consider when deciding whom to appoint as personal representative:
• A personal representative must be bondable. This means the person can be insured against fraudulent acts. Most states require this measure to protect the beneficiaries of the estate. The size of the personal representative bond must equal the amount of the estate’s estimated value. (For instance, you would need to have a net worth of $5 million in order to be bondable to administer a $5 million estate.)
• A personal representative must have good business sense. Managing an estate requires a lot of the same skills needed to run a business. It’s a big responsibility. Personal representatives are held to higher standards in managing the estate than they would be in their own personal affairs. The courts take this responsibility very seriously.
• A personal representative must be reliable and of good character. Choosing a personal representative who suffers from drug or alcohol addiction is an obvious bad move. And of course choose someone who does not have a criminal record.
The replacement personal representative is often appointed in the same petition that removed the original personal representative. You will work closely with your probate litigation attorney throughout the petition process.
A hearing will be scheduled after the petition is filed with the court. Depending on the case, the petition process can require several hearings that will eventually lead to the trial. (Actually, in probate court, the trial is called an evidentiary hearing.)
Unfortunately, the process of appointing a new representative is rarely quick. In uncontested cases with ample evidence, the case can be resolved within a few weeks. However, it usually takes several months to resolve the issue in contested cases.
Petitioning to replace a personal representative can be an emotional and overwhelming task. The guidance and assistance of a lawyer familiar with probate litigation can help make the process less challenging (and less lengthy). Look for a skilled litigation attorney to be your advocate in protecting your inheritance, and to make a difficult time easier for you and your family.