Last month, I discussed common mistakes made during pre-death estate planning and how they can negatively affect estate administration posthumously. Often these avoidable mistakes lead to unnecessary, contentious and costly litigation. Beginning this month and in future articles, I plan on covering some of the most common probate litigation matters.

A situation that often arises in estate administration is when a personal representative, for various reasons, fails to fulfill the duties of the office. Whether it is an interested person in an estate seeking representation to remove a personal representative, or a personal representative that requires some guidance to right the ship and avoid removal, these type of matters are frequently heard in the Orphans’ Court.

Many estates are administered by inexperienced, pro se personal representatives. Quite often, they become overwhelmed by the probate process and oftentimes they are emotionally drained following death of a loved one. In many of these estates, the mistakes made do not always warrant removal. Rather, they are merely in need of some prudent counsel. This is a situation in which attorneys can assist in guiding them through the process. However, in other circumstances, removal by the court is necessary in order to safeguard estate property and protect the interests of all interested persons in an estate.

The statutory grounds for removing a personal representative are found in Estates & Trusts § 6-306(a). This statute requires the Orphans’ Court to remove a personal representative when the Court finds that the personal representative:

1. Misrepresented material facts in the proceedings leading to his or her appointment;
2. Willfully disregarded an order of the court;
3. Is unable or incapable, with or without his or her own fault, to discharge his or her duties and powers effectively;
4. Has mismanaged property;
5. Has failed to maintain on file with the register a currently effective designation of an appropriate local agent for service of process as described in Estates & Trusts § 5-105(c)(6); or
6. Has failed, without reasonable excuse, to perform a material duty.

When one or more of the grounds above are found, removal of a personal representative is mandatory, with one exception: when the court finds a personal representative failed to perform a material duty. If this is the sole finding by the court to justify removal, a judge may decide to allow the personal representative to continue to serve if there is a reasonable excuse and it is in the best interest of the estate for the personal representative to remain in office.

Pursuant to Maryland Rule 6-452(a), “[t]he removal of a personal representative may be initiated by the court or the register, or on a petition of an interested person.” Before a personal representative may be removed, a full hearing must be conducted by the Orphans’ Court to determine whether removal is deserved. The proceedings may be initiated by either a motion of the court, motion of the Register of Wills, or a written petition of an interested person.

Following the filing of a petition to remove a personal representative by an interested person – or, occasionally, by the Orphans’ Court or Register of Wills’ – the court next issues a show cause order which instructs the personal representative to show cause why removal from office is not appropriate. Further, the court sets the matter in for a hearing and all interested persons must receive notice of the scheduled hearing by the Register of Wills’ office.

Once the register gives notice of the removal proceedings to the personal representative, the personal representative’s powers are immediately reduced. Pending the scheduled hearing, the personal representative may only exercise the powers of a special administrator. Pursuant to Estates & Trusts §6-401, a special administrator is appointed by the court “whenever it is necessary to protect property” and no personal representative is currently serving. A special administrator, according to Maryland Rule 6-454, has the power to “collect, manage and preserve property of the estate.”

The limitations of a special administrator are not clearly set forth in the Maryland rules or code. As such, when a personal representative’s powers are reduced to those of a special administrator, it is best practice for a personal representative to obtain the approval of the Orphans’ Court before performing any duties besides the most basic administrative tasks. Specifically, a special administrator should never sell estate property without obtaining the court’s preapproval. A Petition for Authority to Sell Property is routinely granted in the Orphans’ Court. Obtaining a court order prior to the sale of any estate property protects the personal representative, particularly when he or she possesses diminished powers.

Following the plenary hearing on whether removal is required, if the court denies the request, the full powers of the office are returned to that of a personal representative and he or she may continue the normal administration of the estate. However, if the Orphans’ Court rules in favor of the petitioner and removes a personal representative, the court must simultaneously appoint a successor personal representative or special administrator. Upon removal, a former personal representative is directed to immediately account for, and turn over control of, all estate assets.

The removal of a personal representative is a final order and the removed personal representative may immediately appeal the decision. The removal may either be appealed to the Court of Special Appeals or Circuit Court. If appealed to the Circuit Court, it is heard as a de novo appeal and if appealed to the Court of Special Appeals, it is based on the record of the Orphans’ Court. Once an appeal is filed, the successor personal representative continues to serve with the limited powers of a special administrator. Upon final resolution of the appeal, depending on the appellate court’s ruling, either the removed former personal representative is reinstated, or the successor personal representative continues to serve with full powers restored.

Zachary W. Worshtil is an attorney at Powers & Worshtil, P.C. He is also a member of the PGCBA Board of Directors and co-chair of the Probate, Estates, Trusts & Elder Law Section. He concentrates his practice primarily in estate administration and probate litigation.