Detailed Answer
In California probate, any interested person may petition to remove a personal representative for mishandling estate assets. An interested person includes heirs, beneficiaries, creditors, or any party with a financial stake in the estate (Probate Code §48).
Grounds for Removal
Under Probate Code §8500, the court may remove a personal representative for:
- Failure to perform fiduciary duties (mismanagement, waste, or embezzlement).
- Conflict of interest or lack of impartiality.
- Willful misconduct or gross neglect.
- Incapacity or failure to post bond.
Step-by-Step Process
- Prepare the Petition: Use Judicial Council Form DE-300 (Petition for Removal of Personal Representative) and attach Declarations detailing specific misconduct. Cite sections of the Probate Code to support your claims.
- File the Petition: Submit the petition to the probate court in the county where the estate is open.
- Serve Notice: Serve a copy of the petition and a hearing notice on the personal representative and all interested persons at least 15 days before the hearing (Probate Code §1215).
- Attend Hearing: Present evidence of mishandling. The court reviews bank statements, accountings, and witness testimony.
- Court Ruling: If the court finds sufficient grounds, it will remove the current representative and appoint a successor (often the next priority heir or a court-appointed administrator).
After Removal
The successor must file an oath and bond, then assume fiduciary duties. The court may order the former representative to restore misappropriated assets or pay damages.
Statute Links
- Probate Code §48 – Definition of Interested Person
- Probate Code §8500 – Grounds for Removal
- Probate Code §1215 – Notice Requirements
Disclaimer
This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Helpful Hints
- Confirm you qualify as an “interested person” before filing.
- Gather clear documentation: bank records, accountings, and communications.
- Use precise statutory citations in your petition.
- Serve all required parties to avoid delay or dismissal.
- Prepare witness declarations to strengthen your case.