When a person dies in South Carolina, the individual responsible for administering his or her estate in probate is referred to as a “personal representative.” If the decedent left a trust, the individual responsible for administering the trust is referred to as a “trustee.”
In most situations, personal representatives and trustees will dutifully fulfill their obligations, and the administration process will move forward relatively smoothly. However, sometimes issues arise; and, when they do, it may be necessary to have a personal representative or trustee removed.
Removal of a Personal Representative in South Carolina
Removal of personal representatives is addressed in Section 62-3-611 of the South Carolina Code of Laws. Under Section 62-3-611(a), “[a] person interested in the estate may petition for removal of a personal representative for cause at any time.”
The definition of “cause” is addressed in Section 62-3-611(b). Grounds for seeking removal of a personal representative in South Carolina include:
- “[The] personal representative or the person seeking his [or her] appointment intentionally misrepresented material facts in the proceedings leading to his [or her] appointment;”
- “[T]he personal representative has disregarded an order of the court;”
- The personal representative, “has become incapable of discharging the duties of his [or her] office;” and,
- The personal representative, “has mismanaged the estate or failed to perform any duty pertaining to the office.”
In order to seek removal of a personal representative, an heir, devisee, or other “person interested in the estate” must file a petition with the probate court and serve the personal representative with a summons and a copy of the petition. Once the personal representative has been served, “the personal representative shall not act except to account, to correct maladministration, or preserve the estate.” The probate judge will schedule a hearing; and, if the judge determines that the personal representative should be removed, “the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.” At this point, someone else can also petition to be named as the successor personal representative.
In most cases, a petition for involuntarily removal of a personal representative will be based on mismanagement of the estate or the personal representative’s failure to perform his or her duties. Examples of mismanagement and failure to perform include things like:
- Failing to timely file the necessary forms in order to open the decedent’s probate estate
- Failing to preserve estate assets, timely pay the estate’s bills, or otherwise prevent losses or claims against the estate
- Failing to timely provide notice to creditors, pay valid creditor claims, or dispute invalid creditor claims
- Failing to properly identify the decedent’s heirs and devisees
- Failing to properly determine the interests and specific property rights of heirs and devisees
- Failing to timely distribute estate assets, or improperly distributing estate assets
- Failing to timely close the decedent’s probate estate in order to prevent unnecessary issues or avoidable claims
Importantly, there are alternatives to filing a petition for removal. Whether for family, practical, or other reasons, in various circumstances it may not be desirable to seek to have a personal representative removed. For example, one option is to seek a restraining order that prohibits the personal representative from performing a specified act but does not result in his or her removal entirely. Additionally, in appropriate circumstances, family members may be able to talk to the personal representative in order to address their concerns without needing to resort to formal legal proceedings.
Removal of a Trustee in South Carolina
Removal of trustees is addressed in Section 62-7-706 of the South Carolina Code of Laws. Section 62-7-706(a) states: “For the reasons set forth in subsection (b), the settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.” The grounds for seeking removal of a trustee under subsection (b) are:
- “[T]he trustee has committed a serious breach of trust;”
- “[L]ack of cooperation among cotrustees substantially impairs the administration of the trust;”
- “[B]ecause of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries;” and,
- “[T]here has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.”
Similar to the restrictions placed on a personal representative under Section 62-3-611 while a petition for removal is pending, Section 62-7-706(c) provides that the court can order, “such appropriate relief . . . as may be necessary to protect the trust property or the interests of the beneficiaries,” while a petition for removing a trustee is under review. However, Section 62-7-707 also makes clear that, “[u]nless a cotrustee remains in office or the court otherwise orders,” trustees retain their legal obligations with regard to protecting and distributing trust property unless and until a replacement trustee is appointed or all trust assets have been properly distributed.
While seeking removal of a trustee will sometimes be necessary, similar to personal representatives, there will often be alternatives for dealing with unsatisfactory and non-performing trustees as well. Ultimately, when dealing with an issue during probate or trust administration, the primary focus should be on ensuring that the decedent’s wishes will be carried out efficiently and in accordance with South Carolina law. If you have questions or concerns about a personal representative’s or trustee’s performance and would like to speak with an attorney, I encourage you to get in touch to schedule a confidential consultation.
Schedule a Confidential Initial Consultation in Summerville, SC
If you would like to speak with an attorney about an issue you have encountered during probate or trust administration, contact the Summerville, SC law offices of Watts Law Firm PA. To schedule an appointment as soon as possible, call 843-851-7050 or inquire online today.