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As surviving relatives of my mother, we choose my brother as Administrator in a wrongful death suit; How can we change him?

Bronx, NY |

Our family filed a wrongful death suit for my mother, and initially we chose our brother has Administrator to her estate. We now realized that he is not suitable for this and would like to replace him. How can we do this? Do we just submit a letter to the attorney requesting the change? The document to appoint him is not yet filed with the court, (date set). Please advise how to do this? Appreciate all help and input.

Being a Layperson I might have render misinformation. The document was filed for him being an Administrator, (4 years ago) but we need to reversed this-due to the fact that he is unsuitable. We were in grief, suffering emotionally due to our lost and was thus misinformed at the beginning of the lawsuit. After 4 years of NO information, NO status of this lawsuit, NO correspondence, even after numerous request, we need to reverse this document. How can this be done?

Attorney Answers 5

Posted

I assume that since you "choose him" that he was not named in a will.
Since the petition has not been filed-you should be able to withdraw
your vote and if other family members do the same-you should be able to choose
another family member as PR.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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Posted

I agree with Attorney Pippen. I would do this as soon as possible, however. Once appointed, it will be more difficult to change the executor, and will involve not only additional expenses, but could also result in delays in the wrongful death suit.

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

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Posted

You are a little confused about the sequence of events. Before a wrongful death suit can be filed, a legal representative must be appointed by the court. The procedure is for a petition to be filed. If your mother had no surviving spouse, all of her children who are legally competent would have equal rights to be appointed. Usually, just one person is appointed with the written consent of all the others on a form called a waiver. If you have signed a waiver, it's going to be a huge headache to take it back. Are you sure it's worth it to get involved in a dispute with your brother before the case is even filed? In these situations, it's a good idea for the family to pull together. You will be notified at the end of the day if a settlement is reached, and if you are unhappy with the settlement or how it is to be divided you will have the opportunity to be heard then.

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1 comment

Asker

Posted

Thank you for your response. I do believe a waiver was signed, however the facts were not clear or clarify since this was sign during the time of mourning my mother's death. This was 5 years ago. This document was signed in grief and as surviving children we were all under distress, not thinking clearly. (No fit state of mind) If I remember this document was presented on the day of my mother's funeral. (5 years ago) No further communication was received until now, where we are informed of a settlement that only includes my brother and her surviving spouse.(Dad). How can we dispute this, (the fact that the time frame is so long), We (other surviving children) were misinformed and misrepresented by the attorney who made us believe he was working on all of our behalf. Now in this settlement notice received it clearly state he is only representing my brother. Can this be done? How can this be corrected? We felt in time of our grief we were taken advantage of by same attorney. What rights do we have? Please take into consideration that most of us are living in other States, beside NY. How appropriate is it now to be seeking other legal advise and or representation? What are our recourse, if any. Thanks again for your help. Still believe there is justice in the legal system.

Posted

If the appointment has not happened, this should not be too difficult. If it has happened, it will be difficult and the outcome is uncertain.

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Posted

Unsuitability
An Administrator becomes unsuitable to perform his duties if there is either a conflict of interest or some form of serious misconduct. As regards misconduct, this must be very serious in nature, leading to the Estate suffering as a result of the misconduct. The Court is likely to consider the following examples of misconduct:

Stealing from the Estate
Failure to keep accounting records
Failure to obey a Court Order
Wasting or mismanaging the Estate
Misconduct is not always clear and may not always result in removal. For example, the Court is not likely to remove an Administrator from his office if he has acted rudely or been unfriendly to the beneficiaries, or if he has repeatedly refused to give the beneficiaries information, or if he has been slow on settling the Will.

How to remove and substitute an Administrator
If the beneficiaries have serious concerns regarding the ability of an Administrator to perform his duties, the beneficiaries must firstly write to the Administrator and ask him to explain his actions. If an explanation is not forthcoming or the beneficiaries are not satisfied by the Administrators explanation, he or she may make an application to Court to remove or substitute the Administrator.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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2 comments

James P. Frederick

James P. Frederick

Posted

Outstanding answer!

Howard Robert Roitman

Howard Robert Roitman

Posted

thanks

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