By David A. (Andy) Hall, Esq. – Elville and Associates
Here is the scenario: You are a legatee under a will, which means that you are entitled to receive any property disposed of by will, including property disposed of in a residuary clause and assets passing by the exercise by the decedent of a testamentary power of appointment. See Maryland Code, Estates and Trusts Art., § 1-101(l)-(m). The personal representative (the “PR”) (or what’s known as an executor in other states) is behaving in a way that you do not agree with. Your question is whether or not you can have that PR removed.
The Maryland Code in Estates and Trusts Article, §6-306 states that there are six causes for the removal of a PR:
- Misrepresenting facts leading to her appointment
- Willfully disregarding the order of the court
- Incapable or unable to discharge her duties
- Mismanagement of property
- Failing to maintain an effective designation of a local agent (this is when the PR is not a resident of the State of Maryland)
- Failing to perform a material duty of the office
Whether or not a PR’s conduct rises to the level of a court removing that person requires an intensive factual analysis to be performed by your estate litigation lawyer. Some examples of conduct that could lead to the removal of the PR include: attempting to admit the wrong (or a prior) will to probate, which could arise in a situation where one sibling is in one will and then subsequently left out of the estate in a subsequent will. They would have a strong desire to gloss over the existence of the subsequent will.
The willful disregard of an order of the court is easier than some people may assume. If the PR has failed to file an accounting within the proper time, then the court will likely issue a show cause order requiring the PR to either file the accounting or to demonstrate why the accounting has not been filed. Perhaps the PR did not enlist the help of an estate administration attorney, then they could easily misunderstand these deadlines and what they mean. Thus, innocently missing a deadline could lead to disregarding an order of the court and be grounds for removal.
If you believe that the PR of the estate is mishandling her duties, then you should contact an estate litigation attorney to have them evaluate the facts of your case. The last thing that you want is to have a bad acting PR wasting away assets that your family member worked hard to accumulate, spent time and money to effectively plan for the disposition of those assets after their passing, and then not be distributed in accordance with their estate plan.