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