California estate litigation alleging personal representative misconduct

California personal representatives may find themselves sued for allegations of failure to properly administer estates for which they are responsible.

A personal representative is the person appointed and granted powers by the court to manage and control the estate of a person who has died. The office carries with it significant responsibilities and legal duties. When a personal representative in California intentionally, negligently or even unintentionally fails to correctly fulfill those responsibilities, he or she may become subject to a lawsuit or other legal action, including orders of the court concerning the estate.

(To clarify, the term executor is often used interchangeably with personal representative. In California, however, a personal representative can be any one of four types: executor, administrator with will annexed, administrator or special administrator.)

Duties and powers of personal representative

According to California statutes, a personal representative must use "ordinary care and diligence" and act "reasonably and in good faith" in administering the estate. The personal representative has a fiduciary duty toward the estate and interested parties like heirs, will beneficiaries and estate creditors. A fiduciary duty means that the personal representative must act with good faith, openly and in light of protecting the interests of interested parties.

The personal representative receives a statement of duties and liabilities of the office and must take an oath to perform them. Required acts of a personal representative are often subject to detailed procedural requirements and within deadlines imposed by California probate laws.

Those duties include:

  • Getting appraisals of the property left by the decedent
  • Taking a complete inventory of assets and liabilities
  • Maintaining and preserving the deceased person's assets, including procuring insurance
  • Selling property to satisfy expenses of estate, when appropriate
  • Allowing, rejecting and paying valid bills and claims
  • Filing returns and paying taxes
  • Bringing lawsuits that would benefit the estate
  • Defending suits against the estate or decedent
  • Ascertaining valid creditors of the estate and providing them appropriate notice
  • Preventing depreciation or loss in the value of estate assets
  • Making appropriate investments to protect asset value
  • Collecting valid debts owed to the estate
  • Hiring professionals to assist in proper administration like attorneys, appraisers, accountants and others
  • Providing accounts and financial statements when required
  • Filing a final account and requesting an order to distribute the estate to the beneficiaries
  • And others

Litigation concerning personal representatives

A personal representative may be the object of legal action for failure to adequately fulfill his or her duties. Several different lawsuits and court actions are possible for negligent estate administration or for improper acts like stealing or misappropriating money or assets, committing fraud or making improper distributions.

For example, an interested person may petition the court to direct the personal representation to take an action or refrain from an act to prevent "great or irreparable injury." The court may take away all or some of the personal representative's powers or make any proper order to protect the estate.

Penalties for personal representative misconduct may include orders to take particular actions, removal from office, personal liability, fees and more.

Legal counsel important

When an interested party questions the actions (or inactions) of a personal representative, the party should consult with an experienced probate lawyer for legal advice concerning investigation and potential remedies, including a possible lawsuit or court petition.

On the other side of the coin, a personal representative should seek legal representation not only for help administering the estate, but also for defense should the personal representative become the object of a suit or court inquiry.

The attorneys at Buffington Law Firm, PC, represent parties on both sides of these disputes throughout Orange County.