REMOVING THE PERSONAL REPRESENTATIVE (EXECUTOR OR ADMINISTRATOR) DURING A PROBATE PROCEEDING

It is not uncommon for heirs or beneficiaries to want to replace the personal representative (aka executor or administrator) appointed in a probate. Often this arises because of inter-family conflict. However, bad blood and feelings are not enough to have a personal representative removed.

California sets forth several grounds for removal of a representative:

  • Waste, embezzlement or mismanagement committed by the representative, or that the representative is about to commit;
  • Fraud upon the estate committed, or about to be committed, by the representative (for instance it comes out the representative, also the surviving spouse, was already married to else at time of alleged marriage to the decedent (Estate of Gainfort (1938) 11 Cal. 2d 298);
  • Prolonged neglect in performing acts as personal representative, such as filing the inventory and appraisal within the required time frame;
  • It turns out that the personal representative is not in fact qualified for appointment;
  • Inability to properly execute duties; or
  • “Any other cause” provided by statute (Prob. Cod. § 8502(e)).

“Any other” grounds include abuse of authority confirmed under the Independent Administration of Estate Act (IAEA), such as failure to give the requisite notice of a proposed action, or taking action without required court approval, where such approval is necessary. They also include (but are not limited to): the representative’s failure to furnish a bond, where required; contempt for disobeying a court order; when another person with superior right to appointment as administrator requests appointment; and where a conflict of interest with other interested persons subsequently arises (though this depends on the nature of the conflict of interest).

Any interested person may initiate a proceeding to remove the administrator, by filing a verified petition stating the facts that show cause for removal. The probate court then “cites” the representative to appear and to show cause why s/he should not be removed. (Prob. Cod. § 8500(a) & (b).) Alternatively, the court may “cite” the representative on its own motion, when the judge has reason to believe “from the court's own knowledge or from other credible information, whether on the settlement of an account or otherwise,” there are grounds for removal (Prob. Cod. § 8500(b)). The court may also summarily remove the administrator when the court has adjudged the personal representative in contempt for disobeying an order of the court.