Handling Disputes Over Executor Actions: A Probate Litigation Guide

In this article, you’ll discover:

• The duties of a personal representative in Colorado probate cases
• How to challenge a personal representative if you believe they’ve mismanaged the estate
• Evidence required to prove personal representative misconduct

What Are The Legal Duties Of An Executor In Colorado Probate Cases?

In Colorado, the executor is called a personal representative. The court appoints a personal representative, and there is a priority for whoever is named in the will. The statute lists which family members have the highest priority if there’s no will. 

Suppose the person of highest priority is your mother, but she doesn’t want the responsibility because she’s grieving. If she prefers you to be the personal representative, she has to sign a waiver for you to be appointed. 

Once the personal representative is appointed, they have to treat the property as if it is in their care for someone else, which it is. The estate is in their care to carry out the decedent’s wishes if there is a will.

The personal representative must carry out the statutory requirements for distributing that property if there’s no will. It’s not their property, so they must look at it as an account manager would, investing it for another. You don’t treat it the same as you might if you were to invest your own property. 

That’s the mindset a personal representative needs to have. They have to secure all the property, send out notices to creditors, and evaluate the creditors’ claims when they come in to see if they’re valid or not. Then, they are responsible for finally distributing the property. If the heirs can’t agree on that, the final decision rests with the personal representative.

How Can I Challenge A Personal Representative I Believe Is Mismanaging The Estate?

Most probates are started informally, meaning there’s very little court supervision. The court will only get involved if an heir files a motion asking the court to review what the personal representative is doing based on a suspicion of mismanagement. 

There’s also a formal probate where the court is more hands-on from the outset. You file this if you anticipate claims from the heirs. That way, from the outset, the court is somewhat more involved. You must file your inventory and accounting with the court rather than just giving it to people asking for it. 

If you are challenging a personal representative, you want to see if this is a formal or an informal probate. Then, you file a motion to bring the issue to the court. However, discussing your issues with the personal representative is best. It may be a miscommunication or a lack of understanding of the process. Your priority should be talking to the personal representative and working it out.

How Do Executor Fees Contribute To Probate Disputes, And What Can Be Done About It?

It’s generally expected that if the personal representative is a family member, they won’t be compensated for doing the job. However, the court will also recognize the hours a personal representative puts in.

As a personal representative, you can be compensated for those hours at the rate of someone doing the work who is not a family member. You must file a petition if you want to get paid. If you decide later that you want to be paid, you can amend the petition. 

If you intend to claim executor fees, keep good records, such as dates, times, hours and receipts for reimbursement. Failing to do so can cause problems. If you don’t have good records for reimbursement and your claim is challenged, the court won’t grant it.

Attorney Tammy Akers is a seasoned lawyer based in Colorado Springs, CO, who has helped countless clients like you navigate the intricacies of estate planning law. With 40 years of experience, she is prepared to assist you with handling and resolving probate litigation disputes so you can finally settle that estate.

Still have questions? Ready to get started? Contact the Law Firm of Tammy W. Akers, LLC at (719) 985-8192 today to schedule an initial consultation.

Can I Challenge The Sale Of Estate Assets By The Personal Representative?

Usually, when a sale of estate assets is coming up, the heirs should have notice. They can ask the court to review the sale if they don’t receive notice or believe the sale was improperly conducted. 

You must have a basis for asking the court to review the sale. You can’t simply say the personal representative should have gotten more money for particular assets. You will need expert testimony that says an estate of this size should have generated “X” dollars. If you don’t, you may have to pay the estate’s attorney fees to defend against that motion. It’s not something you want to do lightly.

What Evidence Is Required To Prove Personal Representative Misconduct?

The personal representative is given a lot of discretion. The presumption is they understand their job and are doing it well. You have to come up with factual evidence that demonstrates they’re not treating everybody fairly. You also need to show the court what would have happened if they had treated everybody fairly.

For example, suppose you’re challenging the house sale and think the personal representative sold it to a friend at $40,000 below the actual value. You would need a realtor to testify:

• What the Comparable Market Analysis for the value of that property was on the sale date
• It was likely any third-party transaction without interested parties involved would have resulted in that amount being paid by the buyer
• Because of the relationship with the buyer, it was not sold for fair market value

What Are The Risks Of Removing An Executor In The Middle Of Probate Proceedings?

There are risks to the efficiency of the process, and much of the work the personal representative did will have to be redone by the substitute personal representative. 

You can also request a special administrator to be appointed just to handle one portion of the property. The special administrator will often be appointed to sell the real estate or divide the financial assets. In this case, you do have some duplication of efforts and fees. You want to ensure it’s worth removing the personal representative. 

The courts are not going to remove a personal representative lightly. You’ll need to show the court that damage is being done to the estate assets due to the personal representative’s action. Be sure this is not merely a matter of needing better communication. It has to be a situation where the personal representative is saying, “It’s my way or the highway, and I’m going to do what I want.” 

How Do You Support Families When The Personal Representative’s Decisions Are Emotionally Difficult For The Family To Accept?

This happens often. It’s hard dealing with a parent or spouse’s death. It gets more complicated when the relationships between the heirs are not strong to begin with. 

A death can bring family members together, or it can tear them apart. Sadly, it’s often the latter. In those circumstances, it’s important to appeal to a person’s rational side and say, “What would you have done differently? How would you have managed this differently?” I encourage them to see that what the personal representative did was rational, even if they didn’t like the outcome.

Still Have Questions? Ready To Get Started?

For more information on Handling Disputes Over Executor Actions, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (719) 985-8192 today.