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Being removed as Executor

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deadringer

Junior Member
What is the name of your state (only U.S. law)? Utah

So my husband has received a letter that states that one of his siblings is going to try and petition the court to have him removed as executor of their mother's estate. We have contacted the lawyer that represents the estate but while we wait for them to get back to us I have a question.

If the sibling is successful in getting him removed then my husband will need to be replaced. My husband will never vote to allow any of the other siblings to take over , so my question is what will happen in that case. Will the court appoint someone outside of the family?

We just want to have some peace of mind before our lawyer gets in touch with us about this matter.

Thanks.
 


anteater

Senior Member
This is the sister that doesn't want to sell the house?

So, what are the grounds for removal? It's not a sure thing that the court will remove your husband. A disagreement about selling or not selling an estate asset is not likely to end up in removing the executor.

I'm not going to guess what probate judges in Utah might do... But I really doubt that, if the court agrees on removing your husband, the judge is going to put it up to a vote among the siblings. If there is enough discord among the heirs, the judge will probably appoint an independent party. And all the concerned parties will end up paying for it.
 
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curb1

Senior Member
I just went through this as an observer from a distance (not a close relative). Everyone (both sides of the squabble) got the royal shaft economically when the judge appointed an attorney to act as executor. The costs to the estate for this process went up dramatically when the newly appointed attorney hired other attorneys to do some of the work. They were sending $250/hr. bills back and forth. In a matter of weeks they extracted over $100,000 from the estate while making very quick and poor decisions about selling property. I just watched in amazement as the judge indifferently approved the process. From his viewpoint it was just one more case solved. He really didn't care about the cost.
 

deadringer

Junior Member
This is the sister that doesn't want to sell the house?

So, what are the grounds for removal? It's not a sure thing that the court will remove your husband. A disagreement about selling or not selling an estate asset is not likely to end up in removing the executor.

I'm not going to guess what probate judges in Utah might do... But I really doubt that, if the court agrees on removing your husband, the judge is going to put it up to a vote among the siblings. If there is enough discord among the heirs, the judge will probably appoint an independent party. And all the concerned parties will end up paying for it.
Yes this is that sister except now she has changed her tune and instead of not wanting to sell she is demanding that the sale be immediate and for any reasonable offer. Funny thing is there was a reasonable offer and this sister and another sibling both claimed that it wasn't at the time.

Thanks to everyone for the feedback.
 

tranquility

Senior Member
If the sibling is successful in getting him removed then my husband will need to be replaced. My husband will never vote to allow any of the other siblings to take over , so my question is what will happen in that case. Will the court appoint someone outside of the family?
There is no "vote".

An executor is removed by order of a judge for fiduciary breach. (Or, a potential breach which is easily prevented.) It is not casually done and there are ramifications. If your husband is removed, there will almost assuredly be a penalty for the fiduciary breach. The judge will also appoint another to take the place of the executor. Since he doesn't want to do this again, it is likely a professional will be appointed.

The professional will certainly cost more to get things done.

It's a good thing the property was distributed or professional advice was obtained to determine what to do.
 

deadringer

Junior Member
So the time has come and we have been notified that a hearing has been set. The estate lawyer has contacted us to advise us of this date, and has advised us that we should prepare to be there in person. We are not in the same state and it will be next to impossible for us to attend. Counsel has represented my husband on all court proceedings to this point. Is there a reason my husband needs to be there in person.

The case is pretty straight forward. No fiduciary breach has occurred in our opinion and we have evidence for backup of each of the accusations against my husband.

The law in Utah states....

(2) Cause for removal exists:
(a) When removal would be in the best interest of the estate.
(b) If it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment.
(c) If it is shown that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, has mismanaged the estate, or failed to perform any duty pertaining to the office.

a) I guess this is a matter of opinion. Pretty unclear as to what would be done to justify this.

b) leading to the appointment my husband did not misrepresent anything. In fact he was voted in by his siblings and this was decided long before his mother passed away

c) We were advised by counsel that this probate is not under the supervision of the court.

Should we be looking for new counsel or are we missing the bigger picture here?

Do we have grounds to have this dismissed based on the reply in section C)

????
 

curb1

Senior Member
It is (a) that is going to be a problem. Sometimes/often a judge will appoint an independent person to work with the family. That is where the bills start skyrocketing. You won't believe how little satisfaction you will get for $250/hour.
 

deadringer

Junior Member
It is (a) that is going to be a problem. Sometimes/often a judge will appoint an independent person to work with the family. That is where the bills start skyrocketing. You won't believe how little satisfaction you will get for $250/hour.
So are you saying that a judge can decide what is in the best interest of the estate even though the probate is not under court supervision?
 

anteater

Senior Member
c) We were advised by counsel that this probate is not under the supervision of the court.

Should we be looking for new counsel or are we missing the bigger picture here?

Do we have grounds to have this dismissed based on the reply in section C)

????
I don't know the Utah probate code and, honestly, I'm too tired to take a look. But I suspect that the attorney did not explain fully (not expecting that this kind of zaniness would occur) or you are misinterpreting what the attorney meant. An independent or unsupervised administration generally means that the executor does not have to keep running back to the court to get approval for estate transactions. It doesn't mean that disputes concerning the administration cannot be be brought before the court by interested parties. When the court grants independent/unsupervised administration, the court is not relinquishing its jurisdiction.

It's still rather amazing that the two siblings are pushing for removal.
 
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deadringer

Junior Member
I don't know the Utah probate code and, honestly, I'm too tired to take a look. But I suspect that the attorney did not explain fully (not expecting that this kind of zaniness would occur) or you are misinterpreting what the attorney meant. An independent or unsupervised administration generally means that the executor does not have to keep running back to the court to get approval for estate transactions. It doesn't mean that disputes concerning the administration cannot be be brought before the court by interested parties. When the court grants independent/unsupervised administration, the court is not relinquishing its jurisdiction.

It's still rather amazing that the two siblings are pushing for removal.
I did not mean to make it seem as if they could not bring suit for valid reasons. All I was saying was that the court has not ordered anything that was not followed. The reasons they are pushing for removal are explained in the petition and are as follows.

1) That distribution of the liquid assets have not been distributed. (money that is needed to sustain the estate and it not a large amount under 50K)
2) An appraisal of the home has not been acquired (however two fair market value comparable assessments were completed earlier in the year)
3) The Home has not been listed for sale (until this petition none of the heirs ever mentioned an interest in having it put on the market)
4) That an offer and contract to purchase fell through even though the siblings did not feel the offer was a good one at the time.
5) That no attempt has been made to get rid of items in the home. (We spent the entire summer there last year doing exactly that.)
6) That he has failed to provide documentation of accounting. A full inventory was provided in earlier this year. Since then a few of the bank statements have been provided to keep the heirs abreast of the monies that have left the account to pay bills.

I guess I was trying to figure out if any of these are valid reasons for removal. Also do you feel that my husband has to be present in this case or should counsel be able to represent the estate without his presence. Thanks for your time in this matter.
 
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tranquility

Senior Member
While arguing the facts of why you came to your decisions is important, here's the problem; the court expects a fiduciary to do his job in a businesslike fashion. I'm not sure the executor has been working in a timely fashion and it seems the hardest thing is getting people to agree. Even though that is not his job.

If the OP goes into court (That's why he has to be there, he may have to testify.), every time he says something like "I thought" or "It seemed" he's going to get killed. Better would be "The accountant told me", "The attorney advised me" and so on. I don't know if the house should be sold or distributed. The court really won't care either. They just want to know why a decision hasn't been made and acted on. They are not going to want to hear excuses about people agreeing either. They will want to know what your professional advisers told you and how you came to your decision. It is possible the court will remove the executor or set strict limits on actions (including professional oversight).
 

anteater

Senior Member
While arguing the facts of why you came to your decisions is important, here's the problem; the court expects a fiduciary to do his job in a businesslike fashion. I'm not sure the executor has been working in a timely fashion and it seems the hardest thing is getting people to agree. Even though that is not his job.

If the OP goes into court (That's why he has to be there, he may have to testify.), every time he says something like "I thought" or "It seemed" he's going to get killed. Better would be "The accountant told me", "The attorney advised me" and so on. I don't know if the house should be sold or distributed. The court really won't care either. They just want to know why a decision hasn't been made and acted on. They are not going to want to hear excuses about people agreeing either. They will want to know what your professional advisers told you and how you came to your decision. It is possible the court will remove the executor or set strict limits on actions (including professional oversight).
OP:

My initial reaction was to say that I can't see the grounds for removal. But, looking back at your other thread, it appears that mother-in-law passed away in April 2010 and your husband was appointed by the court in October 2010. So, we're at almost 1-1/3 years since appointment. And, looking from the 30,000 foot view, one has to ask, "This does not seem to be a terribly complex estate. What is taking so long?"

Therefore, I have to agree with Tranq that, if your husband intends to remain as executor, he better be ready to explain things to the court.
 

deadringer

Junior Member
OP:

My initial reaction was to say that I can't see the grounds for removal. But, looking back at your other thread, it appears that mother-in-law passed away in April 2010 and your husband was appointed by the court in October 2010. So, we're at almost 1-1/3 years since appointment. And, looking from the 30,000 foot view, one has to ask, "This does not seem to be a terribly complex estate. What is taking so long?"

Therefore, I have to agree with Tranq that, if your husband intends to remain as executor, he better be ready to explain things to the court.
So from the time of the appointment which was actually closer to December 2010 till March 2011 an inventory of the assets was settled and the siblngs were not putting a big push on a sale. In fact they wanted to try and se if they could plan for it to be a rental. In the summer of 2010 we spent the entire summer there cleaning up.

This may not be a complex estate but the home is enormous with over 20 rooms filled to the brim with stuff. We live on the East coast so being there all the time is not possible. This is something the siblings knew going into this whole thing. During this passed summer we had a life changing event in our family which prevented us from going out there again and we also had worked with a potential sale for over 4 months.

I guess now we are trying to figure out if this is a fight worth pursuing anymore. It's hard to imagine going out there for this hearing only to be told that there will now be someone that is court appointed to assist yet nothing in the status of where we live or our availability to be onsite helping will change.
 

curb1

Senior Member
It sounds as if your husband is not in a good position to be the executor. Is that the primary concern? These situations need someone who can make things happen. Intentions to make things happen are not a substitute for making things happen. Get some help from the siblings and get this finished, or move aside.
 

deadringer

Junior Member
It sounds as if your husband is not in a good position to be the executor. Is that the primary concern? These situations need someone who can make things happen. Intentions to make things happen are not a substitute for making things happen. Get some help from the siblings and get this finished, or move aside.
Why would anyone accept this role?

Although it's painful to admit it I have to say I am starting to agree. However I know that my husband's wishes are to mkae his mother proud by handling the estate the right way and not letting it go to waste through appointed 3rd parties.

Is there any advice for trying to settle without the hearing?
 

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