Nashville View

Removal of Personal Representative

Estate Planning Attorneys Representing Individuals in Nashville and Beyond

If a will names an executor, that person is usually appointed as the personal representative of the estate when the testator passes. Unfortunately, sometimes this person does not act according to the best interest of the estate, and an action might need to be brought to remove him or her. The Nashville estate planning lawyers at Martin Heller Potempa & Sheppard can assist interested parties to a will with removing a personal representative when he or she fails to perform duties appropriately. We know the death of a loved one is an emotional time, and the process of distributing an estate may get frustrating, especially when those handling the estate act wrongly. We are dedicated to making sure that the wishes of a deceased person are properly honored.

Removing a Personal Representative

Executors do not have personal representative power until they are appointed by the probate court. Personal representatives are fiduciaries for an estate, meaning that they have a duty to act reasonably and in good faith, making fair dealings on behalf of the estate. Generally, there is no oversight by a court once a personal representative has been appointed. However, a representative may not pay fees to him or herself, or to an attorney, without court approval.

A personal representative also must usually receive a court’s permission before making preliminary distributions to a beneficiary. Personal representatives are charged with determining whether probate assets exist, as well as locating, valuing, and managing these assets properly during the probate process. They also must set up accounts to hold money for the estate, and they must pay debts and distribute assets accordingly. If a representative fails to perform his or her duties properly, or otherwise engages in inappropriate actions, he or she may be removed and replaced.

Often, resolving an estate may be delayed or prolonged for a number of reasons unrelated to a personal representative’s administration. However, a personal representative may be held liable and removed from his or her position if it is found that he or she:

  • Failed to file tax returns in a timely manner;
  • Overpaid creditors;
  • Sold assets without proper permission;
  • Improperly managed assets;
  • Engaged in accounting fraud or theft; or
  • Comingled estate funds.

Any of these actions may constitute a breach of fiduciary duty, prompting the removal and replacement process. To petition a court for such a removal, an individual must have standing as an interested party in the estate, meaning that he or she has a personal stake in the outcome of the proceedings. A court will then determine whether to replace a personal representative, lower or deny any compensation amount, or even award damages if the financial loss was significant.

Pursue Probate Litigation by Enlisting a Nashville Lawyer

If you are an heir who believes your loved one’s estate is not being handled properly, the Nashville probate litigation attorneys at Martin Heller Potempa & Sheppard can guide you through the process of petitioning for a removal of the personal representative. We also advise people in Franklin, West Meade, Green Hills, and other communities throughout Williamson and Davidson Counties. Call us at (615) 800-7096 or contact us online to schedule a free appointment.