California Probate: Suspension, Removal, and Resignation

Reasons for removal of a personal representative include statutory grounds of wrongdoing, neglect, or incapacity, as well as removal in favor of a person with higher priority. California Probate Code Section 8500-8505 cover this topic.

What happens if the personal representative fails to perform his or her duty?

The court may lower or deny compensation and can replace the personal representative with someone else. The personal representative may even have to pay for any damages he or she caused.

A personal representative may be held liable for:

overpaying creditors,

distributing property to beneficiaries before all creditors have been paid, etc.

failing to collect claims and money due the estate,

selling an asset without the authority to do so, or at an inappropriate price,

not filing tax returns on time,

distributing property to the wrong beneficiaries, or
improperly managing the assets of the estate,

California Probate Code Section 8505 lists these reasons to remove a personal representative:

(a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.

(b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.

(c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.

(d) Removal is otherwise necessary for protection of the estate or interested persons.

(e) Any other cause provided by statute.

Any interested person may petition for removal of the personal representative from office. A petition for removal may be combined with a petition for appointment of a successor personal representative.

What does the Personal Representative do?

The Personal Representative must:

• decide if there are any probate assets;

• value or appraise the estate’s assets;

• pay funeral bills, outstanding debts, and valid claims;

• use estate funds to pay continuing expenses — for example, mortgage payments, utility bills and homeowner’s insurance premiums;

• locate the decedent’s assets and manage them during the probate process. This could take up to a year or longer and may involve deciding whether to sell real estate or securities owned by the decedent;

• receive payments due to the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits)

• set up an estate checking account to hold money that is owed to the decedent — for example, paychecks or stock dividends;

• file tax returns and pay income and estate taxes – including a final state and federal income tax return covering the period from the beginning of the tax year to the date of death;

• investigate the validity of all claims against the estate;

• figure out who is going to get what and how much under the Will. If there is no Will, the administrator will have to look at state law (Probate code Sections 6400 – 6414, called “intestate succession” statutes) to find out who the decedent’s heirs are and determine each heir’s share of the estate;

• give official legal notice to creditors and potential creditors of the probate proceeding and the deadlines for creditors to file claims, according to state law;

• handle day-to-day details, such as disconnecting utilities, ending leases and credit cards, and notifying banks and government agencies — such as Social Security, the post office;

• after getting the court’s permission, distribute the decedent’s property to the people or organizations named in the Will, or to the decedent’s heirs if there is no Will; and
• file receipts for distribution and wrap up any closing details for the estate.

Don’t try this on your own. Hire a probate lawyer (in Los Angeles) to handle this type of matter in court for you. Call Mitchell A. Port at (310) 559-5259.