Can You Remove a Personal Representative From Your Will?
By Lane V. Erickson, Idaho Estate Planning Attorney
You did it! You took the step of meeting with a qualified attorney and you got your own personal estate plan completed. That is a fantastic step forward in making sure that you have protection for yourself while you are alive and a plan for distributing your money, property, and other assets to your family members and loved ones after you die. Congratulate yourself and know that you have now done more than about 65% of other adults in America.
The hard part is behind you. From here on out all you need to do is occasionally review your estate plan to make sure that it still meets your needs and does what you want it to do. The reason that you need to occasionally review your estate plan is because things change. These changes could occur in your life or they can happen in the lives of your family members or loved ones. If a change like this happens, it could have an effect on what you have in your written plan.
I usually suggest that people review their estate plan if there is ever any major life change that occurs. This would include someone being born, someone dying, a marriage, a divorce, a change in a relationship with someone, someone moving away, or just the passage of time. All of these things can change our circumstances, which could change what we want our estate plan to accomplish.
The purpose of this article is to talk about the different ways that you can remove a personal representative you nominated in your written will. Please keep in mind that this is just a summary of the things that you should know about how you can remove or change the personal representative in your plan. If you have questions, we encourage you to contact a qualified estate planning attorney who can answer your questions and help you make the decisions that will be best for you.Who is the Personal Representative and What Do They Do?
The personal representative is the individual you nominated in your written will who will oversee your estate after you pass away. This person is given the responsibility of protecting and preserving all the assets, money, and property in your estate. They are also given the duty of making sure that all your debts and expenses are paid. Finally, the personal representative is required to make the distributions from your estate of money, property, and other assets to the individuals you named as your beneficiaries.
The personal representative is nominated in your written will. However, they don’t actually receive any legal authority to act as your personal representative until the probate process begins.
Probate is the legal process where a court enters an order declaring who the personal representative is. Once this is done, everyone must recognize the authority the personal representative has. In simpler terms, this means that banks, other financial institutions, third parties, creditors, and all other persons have to deal with the personal representative in every aspect of administering the estate of the person who passed away.Reasons You May Want to Remove a Personal Representative Before You Die
After you created your own written will, there may be circumstances that make it so you need to change or remove the person you nominated as your personal representative. The good news is, so long as you are alive, and have capacity, which means you understand what you are doing, you have the ability to change your written will anytime you want.
For example, let’s say that in your written will you nominated your spouse to be your personal representative of your estate after you pass away. Then, several years later, you and your spouse get a divorce. In this circumstance, you no longer want your ex-spouse to be your personal representative. You have the ability to rewrite your will to remove your ex-spouse. You can then nominate some new person to be your personal representative. Maybe this is a new spouse, or maybe it is one of your children.
Speaking of children, let’s use them as another example. Suppose you are single but you have four children who are under the age of 18 when you create your written will. In this will, you named your brother as your personal representative. After several years all of your children are now adults. You can rewrite your will to add your children in as your personal representative now that they are old enough to do it.
In each of these examples, there is a major life change that has occurred in your life. Each of these major life changes made it so you wanted to alter your original plan.Removal of a Personal Representative After You Die
Things become a little different after you die. When you have passed away, the person you nominated in your written will, has the highest priority to be appointed by the court as your personal representative. The only way that a court will make a change in appointment other than who you have nominated is if there is a specific valid legal reason for doing so.
For example, suppose that you nominated your brother to be your personal representative but that he died before you. If you die before you can make a change to your written will, your brother is still nominated as your personal representative. In this instance, the next person you have nominated as your personal representative can provide proof of your brother’s death to show that he is no longer able to serve in this capacity. In this instance, the court would then appoint the successor you have nominated as your personal representative.
As a second example, suppose that the person you nominated was actually appointed as your personal representative. However, if this person becomes a convicted felon, or if there is evidence that they are mishandling or stealing from the estate, other interested parties can file a petition with the court to remove the personal representative for cause. While this is a difficult thing to do, it is possible.
If you have a written will, and you have any concerns about the person you have nominated as your personal representative, we can help. Not only do we help people create customized estate plans, we are also experienced in helping people update their estate plans to make sure they still accomplish what they want. We have assisted numerous clients with their estate plans, and we are confident that we can help you too!Enlist an Idaho Estate Planning Attorney to Help You
Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208.232.6101 for a free consultation. You can also email us directly at firstname.lastname@example.org or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.