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WA-Probate > Probate-Litigation > Disqualification or Removal of the Personal Representative

 

I.  Disqualification or Removal of a Personal Representative

  1. Disqualification of a Personal Representative

    1. "Inherent" Disqualification

    2. "Innocent" Disqualification

  2. Removal of a Personal Representative

  3. Procedure for Removing a Personal Representative

  4. Results of Disqualifying or Removing a Personal Representative

  5. 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   

 

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:

If any appointed Personal Representative becomes disqualified for any of the foregoing reasons, the Court is required to revoke his/her LettersRCW 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:

 

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:

 

2.  Removal of a Personal Representative   

 

A Personal  Representative may be removed for:

Case law provides two additional requirements for removal of a Personal Representative:

Regarding the "any other just cause" possibility, Courts in Washington have revoked a Personal Representative's Letters in the following cases, among others:

And see:

3.  Procedure for Removing a Personal Representative   

 

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:

See:

 

Petition for Orders to Issue Citation, Removing Personal Representative, & Appointing Successor Personal Representative form.

 

and

 

Order Directing Issuance of Citation re Replacing Personal Representative form.

 

and

 

Citation re Replacing Personal Representative form.

 

and

 

Declaration of Mailing of Citation re Replacing Personal Representative form.

 

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   

  1. 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.  RCW 11.28.290  Caution: The statute is silent as to when this shall be accomplished, so your Petition and Order should set forth specific times.
     

  2. Payment of Attorney's Fees.  A prior Nonintervention Personal Representative who has been removed is liable for attorney's fees as the Court determines.  RCW 11.68.070
     

  3. Transfer to Co-Representatives.  If multiple Representatives had been simultaneously serving, the others assume full authority.  RCW 11.28.270
     

  4. 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.  RCW 11.28.280
     

  5. Nonintervention Powers.  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 Representative.  RCW 11.28.280; RCW 11.68.060
     

  6. 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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