What Are The Grounds to Remove a Personal Representative in a California Probate?

Ideally, a personal representative acts like a responsible fiduciary and efficiently and ethically administers the estate.  If a California personal representative does not meet their fiduciary obligations, however, there are several grounds to remove a personal representative in California probate.

Grounds for removing a personal representative from office in a California probate

Section 8502 of the California Probate Code sets forth the grounds to remove a personal representative in a California probate and states that a personal representative may be removed from office for any of the following causes.

  • The personal representative has wasted, embezzled, mismanaged, or committed fraud on the estate or is about to do so.
  • The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as a personal representative.
  • The personal representative has wrongfully neglected the estate or has long neglected to perform any act as a personal representative.
  • Removal is otherwise necessary for the protection of the estate or interested persons.
  • Any other cause provided by statute.

Removing a personal representative on the above grounds is within the discretion of the Court.

Who can petition for removal of a California personal representative?

Any interested person may petition for removal of the personal representative under section 8500 of the California Probate Code.  The petition must state the facts showing cause for removal. The party seeking removal has the burden of proving the grounds for removal of the personal representative.

The court may also issue a citation on its own motion if the court has reason to believe that there are grounds for removal.

Is intentional wrongdoing by the personal representative a prerequisite for removal?

No.  In the June 2019 case of Estate of Sapp, the California appellate court stated:

Although removal of a personal representative for embezzlement or fraud clearly requires an affirmative showing of moral wrongdoing, and we assume intentional wrongdoing by an administrator will normally establish mismanagement, we must disagree with Feeney that all bases for removal set forth in former section 521 or current section 8502, subdivision (a), of the Probate Code require a showing of intentional wrongdoing. For example, the same list that includes mismanagement, fraud and embezzlement as causes for removal also includes waste.  Waste is defined as injury to the value of an inheritance through an unlawful act or through a simple omission of duty; it does not necessarily require a showing of malfeasance or bad faith.

The fact that waste is not necessarily a “moral wrong” calls into serious question our conclusion in Feeney that all four bases for removal under former section 521, including mismanagement, must be interpreted to require an affirmative showing of moral wrongdoing. Therefore, we overrule our decision in Feeney to the extent it held a personal representative can only be removed for mismanagement upon a showing of moral wrongdoing and,   instead, adopt the more commonsense definition of the term “mismanagement” from Estate of Palm, supra, 68 Cal.App.2d at page 210.

The definition of mismanagement from Estate of Palm is:

The term ‘mismanage’ has been construed to mean merely that the business of the estate has been badly, improperly or unskillfully conducted.

Therefore, a personal representative can simply be so bad at the job that mismanagement without any intentional wrongdoing can be a grounds for removal under California Probate Code section 8502.

Other Statutory Causes For Removal Of A California Personal Representative

Bad behavior is not the only reason that a personal representative can be removed from office.

Removal By Person Having Higher Priority

Pursuant to section 8503 of the California Probate Code, a surviving spouse or a relative of the decedent entitled to succeed to all or part of the estate, of the nominee of the surviving spouse or relative, if such person is higher in priority than the administrator, may petition to remove the administrator.  The California Probate Court is permitted to refuse to grant the petition in its discretion where the petitioner had actual notice of the proceeding in which the administrator was appointed and had an opportunity to contest the appointment, or where granting the removal would be contrary to the sound administration of the estate.

Admission to Probate of a Later Will

Pursuant to section 8504 of the California Probate Code, a personal representative shall be removed from office on the later admission to probate of a will (after appointment on intestacy) or later will (upon appointment with prior will annexed).

Contempt For Disobeying An Order of the Court

If a California personal representative is found in contempt for disobeying an order of the court, it is grounds for removal.  Section 8505 provides in part that:

A personal representative may be removed from office under this section by a court order reciting the facts and without further showing or notice.

It is never a good idea to disobey a court order, and for a California personal representative it is grounds for a swift removal.

Andrew Gold, Esq.