Ask The Lawyer By: Daniel A. Gwinn, Esq.- Mom’s Choice to Handle Estate?
OH BROTHER! MOM’S CHOICE TO HANDLE HER ESTATE ISN’T UP TO THE JOB
QUESTION: My mom passed away unexpectedly last summer. In her will, she named my brother, Bob, personal representative, apparently on the belief that the eldest child should always take this role. Bob is a dear, sweet, man — but he can hardly keep his own life in order. He hates forms, and sometimes refuses to fill them out, or signs without reading (he lost a life insurance policy that way). My sister and I agree that Bob is just about the worst person to take on work that, from what I’ve heard, requires a lot of attention to detail. Bob says Mom asked him, so he’s going to do it — but so far, he hasn’t done anything, as far as we can tell. What can we do?
ANSWER: Choosing a personal representative (PR) — formerly called an executor — to handle the details of distributing an estate is something that should be done with care. A PR has to take responsibility for ensuring that an estate is opened in the probate court, that anyone who might have a claim is notified, and that all appropriate bills are paid and any bequests under a will are honored (if possible). It’s not an easy job.
And yet, situations like yours are far too common. A parent often names an eldest child to handle these duties, whether or not that son or daughter has any aptitude for the task. Or, a parent might give some thought to aptitude and ability, but then name a personal representative who lives out of state. While a personal representative does not have to know the ins and outs of probate law — and many PRs hire an attorney to help with the details — a PR should make sure that necessary steps are being handled, and it is helpful if the PR lives in the same state as the probate court. (Ohio doesn’t even allow non-residents to open an estate.)
In fact, a personal representative does not have to be a family member at all: Lawyers and accountants are sometimes named to the job.
You don’t state in your letter whether Bob has started the process of opening the estate — which can include being named personal representative. If he has not started the ball rolling, you or your sister, as heirs, could take steps to open the estate yourself.
If Bob has already been named the PR, you can ask the probate court to remove him and appoint someone else (maybe you or your sister). There are two things you should consider before you do this: First, to remove a personal representative you have to be able to show that this would be in the best interests of the estate, or that Bob had disregarded a court order, become incapable of discharging his duties, mismanaged the estate, or failed to perform a required duty. Second, you will most likely need the assistance of an attorney. The court will generally hold a hearing on your request — and attorney fees for preparing for and attending a hearing can add up.
This brings up a third concern: How big is your mother’s estate? The estate will generally pay for an attorney to help with the probate process, but the higher the legal fees, the less there will be in the estate for you and your siblings. The more contentious the process, the higher the legal bill. And, if the estate is very small, a hearing on a petition to remove the PR could cost more than it is worth. If Bob is willing to hire an attorney to help him, and to work with you and your sister, perhaps he could remain as the PR in title, if not fully in fact.
Handling a probate estate is not a walk in the park. This is one area where legal help is more than just a good idea. The fee you pay a lawyer to help you through the process can pay for itself in a speedier resolution of your mother’s estate and in a whole lot less stress for you, your sister — and Bob.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0311 facsimile