- Estate Planning
- , Estates
The hope of a probate proceeding is that the individual appointed as the Personal Representative will act in a professional manner to distribute assets pursuant to the will of the deceased. However, often the Last Will and Testament of the deceased appoint family members to act as the Personal Representative of the Estate; and sometimes the Personal Representative will take advantage of their control over the Estate assets and may misappropriate funds or act inappropriately. If this happens, it may be necessary to petition to the court to remove the Personal Representative.
Who Can Petition to Have the Personal Representative Removed?
Colorado law allows anyone who appears to have an interest in the Estate to Petition to have a Personal Representative removed. This is a broad standard and generally encompasses anyone who may be a potential heir or beneficiary under the Estate.
When Can a Personal Representative be Removed?
Colorado statute specifically allows a court to remove a Personal Representative for cause if certain provisions apply. Specifically, removal is permitted if the individual petitioning for removal can establish either that removal is in the best interest of the estate, the Personal Representative misrepresented material facts in the proceeding, or the Personal Representative has disregarded an order of the Court, has mismanaged the estate or failed to perform any duties required of the Personal Representative. C.R.S. §15-10-503(3)(c)(I)(II)(III).
What is the Process for Removal?
Once it is determined that there may be grounds for removing a Personal Representative, the interested party (the petitioner) must draft and file a Petition for Removal. The Petition must clearly lay out the grounds for requesting removal and provide the appropriate supporting documentation. The Petitioner can either Petition for the removal of the Personal Representative on an emergency or non-emergency basis.
To petition for the removal of a Personal Representative on an emergency basis, the Petitioner must show the Personal Representative’s “actions pose an imminent risk of substantial harm to […] the financial interests of an estate.” C.R.S. §15-10-503(1). If this is shown, the Court may set the matter for hearing on an emergency basis. An emergency hearing can be held as soon as possible and notice is not required.
Most of the time, a Petition for the removal of a personal representative is done on a non-emergency basis. In this situation, the Court will allow the Personal Representative to respond to the Petition within 21 days. The Petitioner may then file a reply seven days thereafter. Once the issue has been fully briefed, the Court will set the Petition for a hearing. All parties to the probate and any heirs or beneficiaries must receive notice of this hearing. The Court will hear argument and testimony at the hearing to determine if removal is warranted.
Petitioning for the removal of a Personal Representative can be a complicated process. Contact our firm today to speak with an experienced attorney if you have reason to believe that a Personal Representative is mismanaging assets or failing to perform their duties.