Accountability of Personal Representative / Executor

Persons to whom money or property are transferred via a will / trust often wonder how to hold the executor accountable. Sometimes it may be the case that a relative, who is the executor of a deceased family member’s will / trust, withholds or delays distribution of money or property. The executor may also fail to reply to inquiries or provide written documentation as to the status of the estate. The beneficiaries may lose confidence in the executor and wonder what can be done.

In Michigan, according to MCL 700.3205, such a person may file a demand for notice of order or filing concerning decedent’s estate. According to the law, a person who wants notice of any order or filing pertaining to a decedent’s estate in which the person has a financial or property interest may file a demand for notice with the court at any time after the decedent’s death stating the decedent’s name, the nature of the person’s interest in the estate, and the address of the person or the person’s attorney. If a proceeding is not pending at the time a demand is filed under this section, the person filing the demand must pay the fee required to commence a proceeding. The person filing a demand shall mail a copy of the demand to the decedent’s attorney, if known, to the personal representative if one has been appointed, and to the personal representative’s attorney. After filing the demand, the person is an interested person entitled to notice as provided in section 1401 and the other provisions of this act.

Additional assistance is found in MCL 700.3611 which provides for termination of appointment by removal. Under this law, an interested person may petition for removal of a personal representative for cause at any time and the court will fix a time and place for hearing. The petitioner must give notice to the executor / personal representative and to other persons as the court orders. Thereafter, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court will order the disposition of the property remaining in the name of, or under the control of, the personal representative being removed.

According to the law, a personal representative may be removed if it is in the best interests of the estate, using Form PC604 Petition for Removal. He may also be removed if it is shown that the he or the person who sought his appointment intentionally misrepresented material facts in a proceeding leading to the appointment. Finally he may be removed if he disregarded a court order, became incapable of discharging the duties of office, mismanaged the estate, or failed to perform a duty pertaining to the office.

The duties and powers of a personal representative are set forth at MCL 700.3701 to MCL 700.3722. MCL 700.3703 provides that a personal representative is under a duty to settle and distribute the decedent’s estate in accordance with the terms of a probated and effective will and the law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He must also keep each presumptive distributee informed of the estate settlement and shall annually, and upon completion of the estate settlement, account to each beneficiary by supplying a statement of the activities of the estate and of the personal representative, specifying all receipts and disbursements and identifying property belonging to the estate. Furthermore, under MCL 700.3712, if the exercise or failure to exercise a power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.

If a beneficiary questions the executor, make sure that a demand for notice of order or filing or some similar notice to the executor has been given in order to lay the foundation that he has notice of your issue. Lay additional foundation for a petition by sending written correspondence regarding your inquiries. Finally, file a petition for removal and this will force him to respond and stifle any further action by him.

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