LawRefs Customized Legal Information
Attorney Renee C. Walsh

Accountability of Personal Representative / Executor

Persons to whom money or property are transferred via a will / trust often wonder how to hold the executor accountable. Sometimes it may be the case that a relative, who is the executor of a deceased family member’s will / trust, withholds or delays distribution of money or property. The executor may also fail to reply to inquiries or provide written documentation as to the status of the estate. The beneficiaries may lose confidence in the executor and wonder what can be done.

In Michigan, according to MCL 700.3205, such a person may file a demand for notice of order or filing concerning decedent’s estate. According to the law, a person who wants notice of any order or filing pertaining to a decedent’s estate in which the person has a financial or property interest may file a demand for notice with the court at any time after the decedent’s death stating the decedent’s name, the nature of the person’s interest in the estate, and the address of the person or the person’s attorney. If a proceeding is not pending at the time a demand is filed under this section, the person filing the demand must pay the fee required to commence a proceeding. The person filing a demand shall mail a copy of the demand to the decedent’s attorney, if known, to the personal representative if one has been appointed, and to the personal representative’s attorney. After filing the demand, the person is an interested person entitled to notice as provided in section 1401 and the other provisions of this act.

Additional assistance is found in MCL 700.3611 which provides for termination of appointment by removal. Under this law, an interested person may petition for removal of a personal representative for cause at any time and the court will fix a time and place for hearing. The petitioner must give notice to the executor / personal representative and to other persons as the court orders. Thereafter, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court will order the disposition of the property remaining in the name of, or under the control of, the personal representative being removed.

According to the law, a personal representative may be removed if it is in the best interests of the estate, using Form PC604 Petition for Removal. He may also be removed if it is shown that the he or the person who sought his appointment intentionally misrepresented material facts in a proceeding leading to the appointment. Finally he may be removed if he disregarded a court order, became incapable of discharging the duties of office, mismanaged the estate, or failed to perform a duty pertaining to the office.

The duties and powers of a personal representative are set forth at MCL 700.3701 to MCL 700.3722. MCL 700.3703 provides that a personal representative is under a duty to settle and distribute the decedent’s estate in accordance with the terms of a probated and effective will and the law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He must also keep each presumptive distributee informed of the estate settlement and shall annually, and upon completion of the estate settlement, account to each beneficiary by supplying a statement of the activities of the estate and of the personal representative, specifying all receipts and disbursements and identifying property belonging to the estate. Furthermore, under MCL 700.3712, if the exercise or failure to exercise a power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.

If a beneficiary questions the executor, make sure that a demand for notice of order or filing or some similar notice to the executor has been given in order to lay the foundation that he has notice of your issue. Lay additional foundation for a petition by sending written correspondence regarding your inquiries. Finally, file a petition for removal and this will force him to respond and stifle any further action by him.

Discussion:

  1. As personal representative of my deceased mother’s estate, I have fulfilled the requirements for filing with the probate court. The real property is being finalized in selling. A lien holder has submitted a demand for notice. What do I need to provide the lien holder at this time, they will be paid in short order?

    • Dear Tim M.:

      Those who have filed demands are entitled to copies of future filings. Give them a call and let them know your intentions.

  2. My brother was appointed as the personal representative to my father’s estate. He died intestate and the matter was brought into probate court 2 years after he died. I was supposed to receive a percentage when the property sold, but my brother and sister divided the money amongst themselves and my brother says he isn’t giving me anything.

    His attorney was sending notification to me using an invalid address, though I had given him the correct address when the process began. That probate attorney has got to be held accountable for sending every petition to an invalid address even though I gave him my correct mailing address for him to send me the only petition I received, which was the very first one when my brother was appointed representative.

    My brother also forged my name on a Bond Waiver that his attorney gave him to sign instead of mailing it to me for signature, which I never agreed to.

    I filed a petition to have him removed, but the house already sold and the title company released all the money to him.

    I want to really know if I can file criminal charges against him since I probably won’t see a penny of my inheritance. Nobody is willing to defend me on a contingency basis and I don’t have the money to hire a lawyer.

    Do I have a right to my inheritance? I have had a couple attorneys tell me I don’t have a case.

    Also, can the Judge order the probate attorney to obtain a bond, because one attorney said that a judge can do that once he is removed from representing the estate.

    Any help is much obliged.

  3. My father who lived in Michigan passed away September 2013. There are 5 siblings and my oldest sister was named Trustee. My sister had influence on my father who made changes to his will, even as late at Feb. 2013 in which it states she took over his estate at that time. She never notified any of us that she was in charge at that time. My sister has spent the majority of my father’s money and she is dragging her feet on distribution of monies and belongings. The 4 siblings want her to be removed, what type of proof do we need to get her removed? My other sister would be great for this task and we agree she should be the replacement, will a judge let us do this? Please help!

    • Dear Anita:

      You may file a petition to remove the personal representative in the best interests of the estate. The form is PC 604 and a link is provided in the article above. You may attach signed and notarized affidavits with your petition, in which the affiant states the facts and circumstances calling into question the personal representative’s actions. Intentionally misrepresenting material facts, disregarding the terms of the will or a court order, becoming incapable of discharging the duties of office, mismanaging the estate, failing to perform a duty pertaining to the office, failing to communicate, etc. are all reasons to remove a personal representative. See also, the duties and powers of a personal representative set forth at MCL 700.3701 to MCL 700.3722.

  4. I am writing in regards to my grandparents’ estate. My uncle filed for personal representative in a MN court and was granted this position based upon a lie. The home was transferred through a TODD to a live-in caregiver daughter but my uncle included the home in the inventory. Without the home the estate is only personal belongings. No other titled property, no savings accounts etc.. Value of belongings is a maximum of $5,000. What is your advice in this matter. Has he not perjured himself and how do I go about bringing this to the courts attention?

    • Dear Susan A.:

      You can bring this to the court’s attention by filing an objection to the Inventory and Appointment of Personal Representative explaining your claims and providing your supporting evidence.

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