After someone passes away, there will need to be another person to step in and make sure that the deceased’s estate is properly distributed. In some cases there is a will that will specifically name this person, who is called an executor or a personal representative. When the deceased dies intestate, meaning there is no will, then a person may apply to be appointed by the court as the personal representative. Minnesota statute 524.3-703 provides that the personal representative is a fiduciary “who shall observe the standards of care in dealing with estate assets.” The statute provides that the personal representative is bound and obligated to exercise the care that a reasonably prudent person would exercise when managing the assets of the estate. In the vast majority of cases, this is exactly what happens. However, in some cases, there is personal representative misconduct.
Personal representative misconduct does not arise just because the personal representative disagrees with the potential beneficiaries of the estate or maybe does not choose the absolutely most advantageous path for the assets. Rather, the personal representative has to commit a serious error and potentially even a crime involving the estate and its assets.
If the beneficiaries believe that the personal representative is squandering the estate or stealing from it, then they can petition the court to have the personal representative removed and replaced if the will is still in probate. This will require an adversarial hearing at which both sides will be able to present evidence and arguments to the judge. A person or persons seeking to have a beneficiary removed will need to prove that the representative is incapable of discharging his or her responsibilities, has squandered the assets, or failed to file a proper and accurate inventory of the estate with the court, for example. If the court determines this is what has happened, the representative may be removed and replaced. In some situations, such as when a representative has embezzled or misappropriated estate funds, the representative could face criminal charges as well as being removed from his or her position. Moreover, the beneficiaries could also file a civil suit against the removed representative to recover any squandered or stolen funds or property.
If you have questions about your rights and responsibilities as a personal representative or as a beneficiary, you need to discuss these issues with an experienced attorney. Call us today at (320) 299-4249 and we can discuss your case and your options.
