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WA-Probate > Probate-Litigation > Disqualification or Removal of the Personal Representative
Disqualification of a Personal Representative
Removal of a Personal Representative
Procedure for Removing a Personal Representative
Results of Disqualifying or Removing a Personal Representative
Payment of Attorney's Fees Upon Petition for Removal
A person may be unfit to be, or to remain as, a Personal Representative by two different results:
If either of these results obtain, the person will not be appointed as Personal Representative or, if already appointed, his/her Letters will be revoked and a successor will be appointed.
This page compares and contrasts Disqualification and Removal.
1. Disqualification of a Personal Representative ñ
a. "Inherent" Disqualification.
RCW 11.36.010 provides that the following persons are legally neither qualified to act as a Personal Representative nor eligible to be, or remain, appointed:
Corporations (except trust companies, national banks, and professional service
Persons lacking legal capacity ("of unsound mind");
Misdemeanants of crimes regarding "moral turpitude"; and
Nonresidents without a qualified resident agent, either:
resident of the local county, or
The attorney of record for the estate.
If any appointed Personal Representative becomes disqualified for any of the foregoing reasons, the Court is required to revoke his/her Letters. RCW 11.36.010
The foregoing grounds are not exhaustive, as the Court has the power to remove and replace any Personal Representative "for any cause deemed sufficient." RCW 11.28.160 See, for example, the following cases in which a person was found by the Court to be disqualified:
Estate of Robinson, 149 Wash. 307 (1928): a named PR was
disqualified upon the finding that he fraudulently removed Decedent's Will from a safety deposit box and
Estate of Stotts, 133 Wash. 100 (1925): a family member was disqualified in favor of a disinterested party upon the finding that Decedent had a long history of secreting property to avoid creditors.
b. "Innocent" Disqualification.
A Personal Representative may no longer remain eligible to serve despite their apparent qualification and competent service. Such may occur, for example:
the Personal Representative resigns, becomes seriously ill, or dies. See
If the Personal Representative is serving as Administrator, due to Decedent's apparently having died intestate, and Decedent's Will is found and admitted to probate. RCW 11.28.150
2. Removal of a Personal Representative ñ
A Personal Representative may be removed for:
"Failing to execute his/her trust faithfully" (ie, for breach of
fiduciary duty), or
Any of the circumstances provided in RCW 11.28.250:
Waste, embezzlement, or mismanagement of the estate, or any situation suggesting that any of that is about to occur;
Fraud upon the estate;
Permanent removal from Washington;
Neglect of the estate; or for
Any other just cause.
Case law provides two additional requirements for removal of a Personal Representative:
grounds for removal must be valid and supported by the record. Estate of
Baird, 60 Wn.2d 127 (1962).
The conduct of the Personal Representative must have damaged, or must be about to damage, the interested parties. McGregor v. Hooper, 76 Wash. 72 (1913).
Regarding the "any other just cause" possibility, Courts in Washington have revoked a Personal Representative's Letters in the following cases, among others:
Estates of Aaberg, 25 Wn. App. 336 (1980): the PR:
Omitted property from the Inventory & Appraisement, and
Failed to make distribution according to the terms of the Will.
Estate of Beard, 60 Wn. 2d 127 (1962): the PR ran a business in an insolvent estate as if:
The estate had been found solvent, and
PR had been granted Nonintervention Powers.
Estate of Blodgett, 67 Wn. 2d 92, (1965): the co-Administrators were:
Not cooperating and
Found to have a long history of animosity.
Estate of Clawson, 3 Wn.2d 509 (1940): the surviving spouse-PR had a
conflict of interest that prevented impartiality.
Estate of Dietrich, 39 Wash. 520 (1905): during the first four months of administration, the PR:
Left the state and
Took no action in administration.
Estate of Livingston, 7 Wn. App. 841 (1972): the surviving spouse-PR in a marginally solvent estate had a conflict of interest by being both:
The PR and
A major creditor among many creditors.
Estate of Wolfe, 186 Wash. 216 (1936): the PR in an insolvent estate:
Failed to take any action on numerous Creditor's Claims for over three years, and
Omitted significant property from the Inventory & Appraisement.
Estate of Hookum, 52 Wn. App. 800 (1988), and
Estate of Ardell, 96 Wn. App. 708 (1999), involving nonintervention estates in which Washington Courts dismissed attempts to revoke the
Letters of a Personal Representative. In Estate
of Ardell, Decedent left the remainder of his estate, valued at
approximately $9 million, to his friend, accountant, Nonintervention Personal
Representative, and Trustee. Seven and a half years after the Personal
Representative's appointment, an estate beneficiary filed a Petition for
Order Revoking the Personal Representative's Letters based on the
Personal Representative's failure to file periodic accountings and
distribute the estate. The Personal Representative filed his
Declaration of Completion of Probate one day before the hearing on the
beneficiary's Petition, among other things requesting the Court to
approve $960,000 in fees for him and his attorney (representing some
$4,800 of fees daily for every business day that the estate had been open).
The appellate Court, finding that the Personal Representative had violated
no statute in failing to file periodic accountings or to distribute the
estate within a proscribed period of time, reversed the trial Court's
revocation of the Personal Representative's Letters but remanded the
case for an evidentiary hearing on the reasonableness of the almost $1
million in proposed fees.
Estate of Jones, 116 Wn. App. 353 (2003), 152 Wn.2d 1 (2004), in which
the Court of Appeals wrote the "for any other just cause" reason out of the
statute for nonintervention estates, a holding that the Supreme Court
In Estate of Jones, Decedent died in
1995 and left her
approximately $500,000 estate equally to her four adult sons, including
Russell, a lawyer and her named Nonintervention Personal Representative, and Peter, the two
of whom had a long history of animosity. A little over three years
later, Peter and a third brother petitioned the Court for an interim
accounting and in a parallel action, alleging breach of fiduciary duty,
petitioned to remove Russell as Personal Representative.
RCW 11.68.065 did not then permit beneficiaries of estates of
Decedents dying in 1995 to petition the Court for an Order requiring
Nonintervention Personal Representatives to provide a Status Report
including an interim accounting. The appellate Court, as in Estate of Ardell,
reversed the trial Court's revocation of the Personal Representative's
Letters for failing to file an interim accounting requested by an
estate beneficiary. The Supreme Court:
Held that all Personal Representatives (ie, whether nonintervention or
not) have the same fiduciary duty to their estate's beneficiaries or heirs,
Found that the Personal Representative had breached his fiduciary duty by:
Using Decedent's home as his own before the estate closed;
Doing so without paying rent;
While doing so, paying the utilities, property taxes, and insurance for the home from estate funds;
Failing to use the fair market value of the home in distributing the home to himself;
Commingling estate and personal funds; and
Refusing to disclose financial information, estate records, valuation of the
estate, and other information to the beneficiaries.
Reinstated the trial Court's revocation of initial Letters and
appointment of a successor Personal Representative,
Awarded attorney's fees to the two originally petitioning brothers to be paid
by the removed Personal Representative from his personal funds, and
Remanded the matter to the trial Court for a final accounting and determination of the amount of attorney's fees to be paid.
3. Procedure for Removing a Personal Representative ñ
RCW 11.68.070 provides the procedure for removing a Nonintervention Personal Representative. Specifically, any heir, beneficiary, or unpaid creditor who has filed a Creditor's Claim may petition the Court, supported by an Affidavit or Declaration under Penalty of Perjury that makes an unambiguous showing of cause for revocation of Letters, or restriction of Nonintervention Powers. The Court is then required to cite the Nonintervention Personal Representative into Court to respond to the charges. At the hearing, the Court may:
Personal Representative's Letters and appoint a successor Personal
Restrict or terminate the Personal Representative's Nonintervention Powers.
Bottom-line: If you question any of the Personal Representative's actions or inaction, and especially if after discussing your concerns with the Personal Representative or his/her attorney, you remain concerned, you should promptly seek the advice of legal counsel.
4. Results of Disqualifying or Removing a Personal Representative ñ
Accounting of Personal
Representative. A prior Personal
Representative is required to submit an accounting, pay all funds, and deliver
all property to his/her successor as the Court determines.
Caution: The statute
is silent as to when this shall be accomplished, so your Petition and
Order should set forth specific times.
Payment of Attorney's Fees.
A prior Nonintervention Personal Representative who has
been removed is liable for attorney's fees as the Court determines.
Transfer to Co-Representatives.
If multiple Representatives had been simultaneously serving, the others assume
Appointment of Successor
Representative. Except in the foregoing case regarding Co-Representatives,
a successor Representative is appointed as if the disqualified or removed
Representative had predeceased the Decedent, and the successor Representative
assumes full authority.
Nonintervention Powers run with the Representative, not the estate, so a
Successor Representative is required to petition for Nonintervention Powers on
his/her own regardless of whether they had been granted to any prior
Liability for Negligent or Wrongful Acts. A prior Representative (and his/her bonding company) is liable for any of his/her negligent or wrongful acts to any successor Representative. RCW 11.28.300
5. Payment of Attorney's Fees Upon Petition for Removal
If the Court grants a Petition for Removal of Personal Representative, it may award attorney's fees as the Court determines. RCW 11.96A.150
A beneficiary or heir who unsuccessfully attempts to remove a Personal Representative is liable for attorney's fees as the Court determines. For example, a Personal Representative is entitled to attorneys fees if a Petition for Removal provides no benefit to the estate but, instead, severely depletes its assets. Estate of Kerr, 134 Wn.2d 328 (1998).
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