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Removing a Personal Representative in North Dakota

On Behalf of | Sep 15, 2020 | Estate Planning & Probate

The death of a loved one is a painful event which brings about a great deal of uncertainty. Along with this uncertainty, past disagreements or family history can erupt among family members on how to handle the deceased loved one’s property and estate. When a loved one’s estate requires a probate to be opened, a personal representative responsible for performing the work of the estate is appointed by the Court. However, disagreements can arise on whether the personal representative is performing the work of the estate and fulfilling the last wishes of the deceased.

1. Who can be a personal representative? A personal representative is appointed by the Court after the documents requesting the opening of a probate are filed with the Court. If a Will is left behind, it will likely identify the person, or persons, who the deceased wanted to be named as personal representative. If no Will is left, the priority of appointment is governed by North Dakota law. In general, the surviving spouse, children, and other relatives have priority to request appointment as a personal representative.
2. What does a personal representative do?To put it simply, the personal representative is responsible for the business of the estate, which includes keeping the heirs and individuals named in the Will informed of the status of the estate, and to identify, protect, and preserve the property of the estate. North Dakota law provides a more complicated definition:

A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this title, and as expeditiously and efficiently as is consistent with the best interests of the estate. North Dakota Century Code § 30.1-18-03(1).

Two of the primary areas where disputes arise between the personal representative and interested parties of the estate are, (1) a failure to communicate and (2) the failure to identify, protect, and preserve the property of the estate.

A failure to communicate.

One of the most common complaints amongst heirs and devisees is they have no idea of what is happening with the estate. There are frequent frustrations that the personal representative has not informed them of the status of the estate, the property included in the estate and the value of that property. These issues can happen in any family but are especially common in situations where siblings have strained relationships and do not communicate on a regular basis. Even if people are not getting along, the personal representative must communicate with the heirs and devisees. North Dakota law requires the personal representative to communicate with interested parties of the estate. Specifically, within 30 days of their appointment, a personal representative must inform interested parties of the appointment. To delve even deeper, a personal representative is required to inform interested parties of all property and other financial interests that are part of the estate. A personal representative must, within 6 months of their appointment or 9 months after the death of the decedent, prepare and file an Inventory of the property owned by the decedent at the time of their death. The Inventory must include a list of each item, its fair market value at the time of the decedent’s death, and any encumbrances on the particular item. A personal representative also has a duty to supplement the Inventory if a new item is discovered or if a previously listed item has changed in value. If you find yourself in a situation where a personal representative is not keeping you informed on the status of the estate, it may be necessary to hire an attorney to open those lines of communication. An attorney can represent your interest while not having the strained history with the personal representative which often leads to communication breakdowns.

Failure to identify, protect and preserve estate property.

A personal representative has an obligation to determine all property within the estate. This duty is consistent with the desire to have the estate’s property distributed in accordance with the wishes of the decedent or according to North Dakota law. When the property is identified, the personal representative must also protect and preserve the estate’s property. North Dakota law empowers the personal representative to take possession and control the decedent’s property. The personal representative must:

…pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in the personal representative’s possession. The personal representative may maintain an action to recover possession of property or to determine the title thereto.North Dakota Century Code § 30.1-18-09.
In other words, the personal representative must gather all the property within the estate and preserve it until it can be distributed to heirs and devisees. Disputes erupt when the personal representative has not preserved the estate’s property, either through mismanagement or by selling or giving estate property to individuals.

3) How can you remove a personal representative? A personal representative can be removed for death or disability, voluntary termination of their appointment, or for cause.  What exactly does it mean to remove an interested party for cause? The first step is to petition a court for that person’s removal. The petition must outline what the personal representative has done (or not done).   Cause for removal may exist if: (1) it would be in the best interest of the estate;  (2) the personal representative intentionally misrepresented material facts when seeking appointment; (3) the personal representative has disregarded an order of the court;  (4) the personal representative has become incapable of discharging the personal representative’s duties;  (5)  the personal representative has mismanaged the estate; or  (6) failed to perform any duty pertaining to the office.  After a petition is filed, the court must set a time and place for a hearing. Notice of the Petition and hearing must be given to the personal representative and any other interested parties.  After receiving the petition, the personal representative must not act, except to account, correct errors, or preserve the estate.  At the hearing, the Court will hear from the petitioner and the personal representative. This can include testimony and documents offered into evidence. If the Court orders removal, a successor personal representative will be appointed. Typically, the person seeking remove of the personal representative is requesting his or her appointment as successor personal representative.  Petitions seeking removal are usually filed in cases where the personal representative has not acted in the best interest in the estate, failed to keep interested parties informed about the estate, taken property from the estate for his or her own benefit, or not taken sufficient actions to close the estate.  If you think a personal representative is mismanaging an estate or not acted in the best interest of the heirs and devisees, please feel free to contact Nilson Brand Law to discuss possible legal steps to ensure your interest is protected. We can be reached by phone at 701-786-6040 or email [email protected].