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:

• Disqualification, or
   

• Removal.

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    ñ

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:

• Corporations (except trust companies, national banks, and professional service corporations);
   

• Minors;
   

• Persons lacking legal capacity ("of unsound mind");
   

• Felons;
   

• Misdemeanants of crimes regarding "moral turpitude"; and
   

• Nonresidents without a qualified resident agent, either:
   

  • A resident of the local county, or
     

  • The attorney of record for the estate.

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

• Estate of Robinson, 149 Wash. 307 (1928): a named PR was disqualified upon the finding that he fraudulently removed Decedent's Will from a safety deposit box and suppressed it.
   

• Estate of Stotts, 133 Wash. 100 (1925): a family member was disqualified in favor of a disinterested party upon the finding that Decedent had a long history of secreting property to avoid creditors.

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:

• If the Personal Representative resigns, becomes seriously ill, or dies.  See RCW 11.28.270
   

• If the Personal Representative is serving as Administrator, due to Decedent's apparently having died intestate, and Decedent's Will is found and admitted to probate.  RCW 11.28.150

2.  Removal of a Personal Representative    ñ

A Personal  Representative may be removed for:

• "Failing to execute his/her trust faithfully" (ie, for breach of fiduciary duty), or
   

• Any of the circumstances provided in RCW 11.28.250:

  • Waste, embezzlement, or mismanagement of the estate, or any situation suggesting that any of that is about to occur;

  • Fraud upon the estate;

  • Incompetency;

  • Permanent removal from Washington;

  • Neglect of the estate; or for

  • Any other just cause.

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

• The grounds for removal must be valid and supported by the record.  Estate of Baird, 60 Wn.2d 127 (1962).
   

• The conduct of the Personal Representative must have damaged, or must be about to damage, the interested parties.  McGregor v. Hooper, 76 Wash. 72 (1913).

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

• Estates of Aaberg, 25 Wn. App. 336 (1980): the PR:

  • Omitted property from the Inventory & Appraisement, and

  • Failed to make distribution according to the terms of the Will.
     

• Estate of Beard, 60 Wn. 2d 127 (1962): the PR ran a business in an insolvent estate as if:

  • The estate had been found solvent, and

  • The PR had been granted Nonintervention Powers.
     

• Estate of Blodgett, 67 Wn. 2d 92, (1965): the co-Administrators were:

  • Not cooperating and

  • Found to have a long history of animosity.
     

• Estate of Clawson, 3 Wn.2d 509 (1940): the surviving spouse-PR had a conflict of interest that prevented impartiality.
   

• Estate of Dietrich, 39 Wash. 520 (1905): during the first four months of administration, the PR:

  • Left the state and

  • Took no action in administration.
     

• Estate of Livingston, 7 Wn. App. 841 (1972): the surviving spouse-PR in a marginally solvent estate had a conflict of interest by being both:

  • The PR and

  • A major creditor among many creditors.
     

• Estate of Wolfe, 186 Wash. 216 (1936): the PR in an insolvent estate:

  • Failed to take any action on numerous Creditor's Claims for over three years, and

  • Omitted significant property from the Inventory & Appraisement.

And see:

• Estate of Hookum, 52 Wn. App. 800 (1988), and Estate of Ardell, 96 Wn. App. 708 (1999), involving nonintervention estates in which Washington Courts dismissed attempts to revoke the Letters of a Personal Representative.  In Estate of Ardell, Decedent left the remainder of his estate, valued at approximately $9 million, to his friend, accountant, Nonintervention Personal Representative, and Trustee.  Seven and a half years after the Personal Representative's appointment, an estate beneficiary filed a Petition for Order Revoking the Personal Representative's Letters based on the Personal Representative's failure to file periodic accountings and distribute the estate.  The Personal Representative filed his Declaration of Completion of Probate one day before the hearing on the beneficiary's Petition, among other things requesting the Court to approve $960,000 in fees for him and his attorney (representing some $4,800 of fees daily for every business day that the estate had been open).  The appellate Court, finding that the Personal Representative had violated no statute in failing to file periodic accountings or to distribute the estate within a proscribed period of time, reversed the trial Court's revocation of the Personal Representative's Letters but remanded the case for an evidentiary hearing on the reasonableness of the almost $1 million in proposed fees.
   

• Estate of Jones, 116 Wn. App. 353 (2003), 152 Wn.2d 1 (2004), in which the Court of Appeals wrote the "for any other just cause" reason out of the statute for nonintervention estates, a holding that the Supreme Court reversed.  In Estate of Jones, Decedent died in 1995 and left her approximately $500,000 estate equally to her four adult sons, including Russell, a lawyer and her named Nonintervention Personal Representative, and Peter, the two of whom had a long history of animosity.  A little over three years later, Peter and a third brother petitioned the Court for an interim accounting and in a parallel action, alleging breach of fiduciary duty, petitioned to remove Russell as Personal Representative.  RCW 11.68.065 did not then permit beneficiaries of estates of Decedents dying in 1995 to petition the Court for an Order requiring Nonintervention Personal Representatives to provide a Status Report including an interim accounting.  The appellate Court, as in Estate of Ardell, reversed the trial Court's revocation of the Personal Representative's Letters for failing to file an interim accounting requested by an estate beneficiary.  The Supreme Court:
   

  • Held that all Personal Representatives (ie, whether nonintervention or not) have the same fiduciary duty to their estate's beneficiaries or heirs,
     

  • Found that the Personal Representative had breached his fiduciary duty by:

    • Using Decedent's home as his own before the estate closed;

    • Doing so without paying rent;

    • While doing so, paying the utilities, property taxes, and insurance for the home from estate funds;

    • Failing to use the fair market value of the home in distributing the home to himself;

    • Commingling estate and personal funds; and

    • Refusing to disclose financial information, estate records, valuation of the estate, and other information to the beneficiaries.
       

  • Reinstated the trial Court's revocation of initial Letters and appointment of a successor Personal Representative,
     

  • Awarded attorney's fees to the two originally petitioning brothers to be paid by the removed Personal Representative from his personal funds, and
     

  • Remanded the matter to the trial Court for a final accounting and determination of the amount of attorney's fees to be paid.

3.  Procedure for Removing a Personal Representative    ñ

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:

• Revoke the Personal Representative's Letters and appoint a successor Personal Representative, or
   

• Restrict or terminate the Personal Representative's Nonintervention Powers.

See:

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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    ñ

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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