When a loved one passes away and leaves a will, that will usually name a person as the executor (called a personal representative in South Dakota) of the estate. If it does not, the court can appoint an executor. This person’s job is to protect the estate until all debts and taxes are paid, then to distribute the property, money, vehicles, and other assets of the deceased as the will instructs. The personal representative can be anyone who is over 18 and of sound mind.
Removing a Personal Representative From a Will
In some cases, an heir, another family member, or a beneficiary (someone who receives assets from the will) might feel that the personal representative should be removed from the position. Legitimate reasons for removal are:
- The representative has been dishonest in court proceedings.
- The representative is guilty of poor management.
- The representative is not able to perform the duties of the position.
- The representative has ignored an order of the court.
- Removing the representative is the best thing for the estate.
If you have evidence of one or more of the reasons above, you may petition the court to remove the personal representative of the estate and give that representative notice of the petition for removal. After receiving notice, the representative may perform only the following duties for the estate until the court rules on the petition:
- Correcting any mismanagement
- Preserving the estate until the court rules
The court will then schedule a hearing and rule on the petition. If it rules to remove the representative, it will either appoint a new representative or distribute the assets of the deceased according to state law and the instructions in the will.
Why You Need an Attorney to Petition the Removal of a Personal Representative
The personal representative has the right to retain a lawyer to defend against the petition for removal. This defense could lead to long delays and high attorney fees that might end up being paid by the estate. Hiring an attorney of your own to represent the estate is the best way to:
- Keep the removal proceedings brief
- Succeed in removing the personal representative
- Protect the estate until the removal takes place
Do You Feel the Personal Representative of a Loved One’s Estate Should be Removed?
Take the first step toward protecting your loved one’s estate by consulting an experienced wills and estates lawyer. Contact us online, start a chat, or call us at 605-644-5003 to schedule a free consultation.