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Can I Take Legal Action Against My Loved One’s Estate Personal Representative?

Posted on in Estate Planning

Milwaukee probate attorney for litigation against a personal representativeBy Attorney Erin Strohbehn

If you have recently lost a loved one and expect to inherit from his or her estate, you will most likely be impacted by the process of probate, during which the estate is settled and assets are distributed to the deceased’s heirs and beneficiaries. One of the most important figures during the probate process is the estate personal representative or executor. Many estate representatives are motivated to perform their duties to the best of their abilities, but some are not so capable. If you believe that your loved one’s estate representative is not suited for his or her role, you may be able to take legal action to have that person removed and replaced.

What Are the Duties of a Personal Representative in Wisconsin?

Typically, a personal representative is named in the deceased’s will or appointed by the probate court according to state law. An estate representative has significant authority to manage a person’s property after his or her death, along with important responsibilities to settle any claims against the estate by creditors and to distribute the remaining assets to the appropriate heirs according to the decedent’s will or intestate succession laws. The personal representative is also responsible for keeping interested parties informed throughout the probate process.

Grounds for Action Against a Personal Representative

In Wisconsin, there are a few circumstances under which a beneficiary to the estate or another interested party may take legal action against a personal representative by filing a petition with the court. Possible grounds for action include:

  • Neglect of duty - This includes situations where the personal representative fails to perform his or her statutory duties, including filing documents within the necessary timeframes and informing interested parties of important developments regarding the estate. 
  • Incompetence - This includes situations in which it is clear that the personal representative lacks the knowledge or ability necessary to properly manage the estate, perhaps involving the gross mishandling of property or assets, resulting in preventable losses.
  • Misconduct - This includes situations involving intentional dishonesty on the part of the personal representative, including fraud, embezzlement of assets belonging to the estate for the personal representative’s own purposes, or undue influence on the decedent before his or her death.

Establishing the personal representative’s neglect, incompetence, or misconduct requires substantial, clear, and convincing evidence, but if you are successful, the personal representative can be removed from the role and replaced, and he or she may also be ordered to pay for court costs and to compensate the estate for financial losses.

Contact a Milwaukee, WI County Fiduciary Litigation Attorney

If you suspect impropriety on the part of a personal representative or trustee, or if you wish to contest a will or trust, a Milwaukee probate litigation lawyer can help. At Gimbel, Reilly, Guerin & Brown LLP, our experienced attorneys will work with you to investigate the situation and take appropriate legal action. Contact us at 414-271-1440 today to learn more about your options.

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/857

https://docs.legis.wisconsin.gov/statutes/statutes/877

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