PROBATE LITIGATION & SIBLING RIVALRY IN THE CAPITAL: PERSONAL REPRESENTATIVE REMOVED FROM ESTATE BY HIS SISTER ! Brother appeals removal as personal representative of ESTATE

Uncategorized • Mar 13, 2014

You’ve heard me say many times before that sometimes estates and trusts do more than just give someone an inheritance. They also can give you a headache when there is sibling rivalry “played out” in the form of administering an estate or a trust. Like someone has said: “You never know someone until you share an inheritance with them.” So here is recent case out of DC that deals with two siblings administering an estate & sister who wants to remove her brother as co personal representative of the estate. If you have a sibling who is running a Florida estate or is trustee of a Florida trust, like, perhaps your mom’s revocable living trust, you may want to take note of this case, whose legal opinion was rendered days ago.

BROTHER & SISTER APPOINTED TO RUN THE ESTATE: CO-PERSONAL REPRESENTATIVES

James and his sister were appointed as Co-Personal Representatives to run their mother’s estate
His sister wanted him removed as Co Personal Representative
The probate court agreed with the sister and removed him as Co-Personal Representative
James appealed the Probate Court’s order removing him from administering the estate
This probate litigation case pits sister against brother as they both vie to control the estate administration process

SISTER TRIES TO DISQUALIFY HER BROTHER’S ATTORNEY

The sister is fighting James on all fronts.
First, she tried to get his lawyer removed
James as Co Personal Representative of his mom’s estate hired a probate lawyer. (In Florida most Palm Beach estate planning attorneys insert language in a Florida will or a Florida revocable trust which permits the executor of the estate – called a Florida personal representative — to hire counsel and have that attorney paid for by the estate or the Florida trust. There are also Florida laws which say the same thing in both the Florida Probate Code for Florida Estates and the Florida Trust Code for Florida Trusts.)
James’ probate lawyer was the former guardian for his mother
In Florida, just because a Palm Beach probate lawyer was also the guardian for someone does not mean that that guardianship attorney/guardian is necessary disqualified from representing the son of a deceased person.
The sister lost: the probate judge ruled that the sister had no ability to seek to disqualify James’ probate lawyer. (In Florida, you need “standing” to be able to try to disqualify SOMEONE ELSE’S attorney. Standing, when you are seeking to disqualify a Palm Beach probate lawyer usually or typically equates to privity. If you are not in privity with the probate lawyer, you can’t seek his or her disqualification. )

PROBATE COURT REMOVES JAMES AS CO PERSONAL REPRESENTATIVE

Q: Why in the world did the Probate Court want to remove James as Co Personal Representative?

Their mom died on October 9, 2011
Two of mom’s children, James and his sister, were appointed on December 15, 2011, as co-personal representatives of her estate
Mom’s will said that both children should run the estate

FRICTION IN ESTATE: DELAYS IN ADMISTERING THE ESTATE —SIBLING RIVALRY PLAYED OUT IN PROBATE ADMINISTRATION ?

There was friction between the two Personal Representatives
Evidently there was a delay in administering the estate
James offered to step down and resign as co personal representative: IF his sister did the same and a third party, an objective person, was named as SOLE Personal Representative. The sister wasn’t buying that: she evidently did not want to give up the power of running her mom’s estate.

PROBATE COURT ORDERED TO HAVE PROBATE HEARING IN ESTATE ON REMOVAL OF PERSONAL REPRESENTATIVE

The sister filed a response and asked that James be removed from running the estate. She wanted the probate court to take away his brother’s powers as co personal representative of the estate
The probate court judge who was overseeing the estate administration, or the probate, ordered a hearing on the petition for removal
Later on, the probate court focused its attention on James: stating that James seemed to be causing the problems with administration of the estate ……was James’ intent to torpedo this co-personal representative relationship?
The probate court seemed to be tired of the sibling rivalry, which can be understandable. After all, probate courts are courts of law, not therapy sessions for adult siblings with issues. Probate courts are supposed to administer an estate, not provide a forum for siblings to fight.

On appeal, the appellate court ordered the probate court to hold a hearing on James’ removal as personal representative. In Florida probate courts, probate litigators from Palm Beach to Ft. Lauderdale know that removing a personal representative or a Palm Beach estate executor is not necessarily an easy task, right?

It is very fact dependent.
Demonstrate that someone is “unfit” to serve as personal representative, to administer a Palm Beach estate, and they are gone.
Show the Palm Beach probate court that someone is interfering with the efficient administration of a Palm Beach estate, and they are gone.
But remember: these estate removal proceedings may be called probate “hearings”, but in fact they are probate trials. So be ready for your Palm Beach probate trial ! …….. Which means you better have a good probate litigator, not just a good Palm Beach probate lawyer, to guide you. Luckily, there are many good Palm Beach estate litigators and probate trial lawyers who know how to try a probate case, call witnesses, and introduce evidence.