A Personal Representative, or Executor, is appointed by the court in a probate proceeding to protect the assets of the estate and to transact business on behalf of the estate during the probate process. The Executor is also responsible for liquidating assets to satisfy creditors of the estate, and to make inheritance distributions from the estate to the heirs and beneficiaries. But what if the Executor makes a decision that you, as an heir or beneficiary, think jeopardizes your inheritance, or that of another heir or beneficiary of the estate? In Massachusetts, the Massachusetts Uniform Probate Code, Article III Section 3-611, provides the steps necessary to remove a personal representative in just such a situation.
File a Petition for Removal of Executor with the court, stating that you are an interested person in the estate proceeding – meaning that you have rights at stake in the administration of the estate, and that you want the executor removed for cause. Usually, the interested people are heirs, beneficiaries and creditors. According to section 3-11 of the Massachusetts Uniform Probate Code, causes for removal include lying about eligibility as an executor to receive the appointment; failing to comply with orders of the probate court; mismanaging estate assets and failing to perform essential duties. An executor may also be removed if he or she has become unable to perform essential duties.
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Ask the court in the Petition for Removal to restrain the executor from taking any further action on the estate while the Petition is pending. This prevents the executor from doing any damage or from doing any further damage to the estate's assets while waiting for the court to hear the Petition for Removal, and while waiting for the court's decision as to permanent removal.
Notify the Executor of the Petition for Removal, according to the procedures required in section 1-401 of the Massachusetts Uniform Probate Code. Mail, by first class, certified or by registered mail, a copy of the petition – or hand deliver it. Mail or deliver the notice within the time frame the court establishes at the time of filing. Notify any others who are interested in the estate, as the court instructs. Usually, this includes, at the very least, the other heirs and beneficiaries, since their rights are also effected by the executor's performance.
Collect all available proof of the executor's mismanagement, and any other grounds stated in the Petition for Removal. This includes all documents and any witnesses that are needed to testify to any mismanagement or wrongdoing by the executor.
Appear at the hearing and present the evidence to the court. The court must set a hearing on the petition within ten days of filing. Provide copies of any documents to the court and to the executor or his/her attorney. Question witnesses as to the misconduct each has personally observed. The court will either render a decision or ask for more evidence. Proceed, as the court requires.
An attorney for more than 18 years, Jennifer Williams has served the Florida Judiciary as supervising attorney for research and drafting, and as appointed special master. Williams has a Bachelor of Arts in communications from Jacksonville University, law degree from NSU's Shepard-Broad Law Center and certificates in environmental law and Native American rights from Tulsa University Law.