When a person dies with a will, they are said to die testate. The will typically appoints an executor (male) or executrix (female) to fulfill the wishes of the deceased. Sometimes, the executor is also a named beneficiary of the will, although this is not always the case. For practical purposes, this could include selling real estate, personalty, and closing bank accounts and distributing it as per the will. When a person dies without a will, they are said to die intestate. Instead of an executor or executrix being appointed in the body of the will an administrator is appointed to fulfill the same roles and duties as the executor. The executor/executrix/administrator are considered “personal representatives” of the estate. But what do you do if you believe the personal representative is not acting appropriately? Perhaps you have strong suspicions that the personal representative is pilfering money that does not belong to him or her. The first question you have to ask is do you have standing to do anything?
The Probate, Estate and Fiduciary Code allows the court to remove a personal representative of the estate upon the petition of “any party in interest” alleging adequate grounds for removal. But what does “any party in interest mean?” The Orphans’ Court of both Bucks County and Delaware County pointed out the Probate, Estate and Fiduciary Code does not define “any party in interest.” The Bucks County Orphans’ Court defined “party in interest” to mean “an unpaid claimant of the estate or a beneficiary, an heir or a next of kin or claimant…” 20 Pa.C.S. 3503. Therefore, even if you are a child of the decedent, you are not necessarily vested with authority to remove the personal representative even if you have first-hand knowledge of misappropriation. In the Bucks County case, DiDio Estate, 12 Fiduc. Rep. 2d 14 (Bucks Cty. 1991), the trial court found that a son of a testator was not a “party in interest” and therefore lacked standing to petition to remove the executor because the executor was also a son of the testator and the sole beneficiary of the testator’s Will.
The Pennsylvania Supreme Court has likewise spoken on the issue of standing to remove a personal representative by analyzing the relationship of the moving party to the estate and to determine whether the moving party has a direct interest in the estate, and therefore standing. Kilpatrick’s Estate, 368 Pa. 399 (Pa. 1951). In Kilpatrick’s Estate, the decedent’s son-in-law attempted to remove the executor. Of import is that the son-in-law’s wife (testator’s daughter) pre-deceased the testator, who was a named beneficiary in the testator’s will. The son-in-law argued that he had standing to petition to remove the executor because his wife’s estate would benefit directly from the removal which would then indirectly benefit him. While the Pennsylvania Supreme Court seemed to agree that the son-in-law may have an indirect benefit from the removal of the executor, they found he lacked standing, noting however that the wife’s estate, acting through an administration has the sole right to sue on its behalf.
Delaware County Orphans’ Court, utilizing the standards set forth by the Pennsylvania Supreme Court and Bucks County Orphans’ Court, grappled with deciding whether a contingent beneficiary of a will had standing to petition for the removal of the executor. In Viola E. Whiteley’s Estate, No. 531 of 2014, Viola E. Whiteley (hereafter “Viola” or “Decedent Viola”) and her husband Norman L. Whiteley, Sr. (hereafter “Norman” or “Decedent Norman”) drafted and executed their nearly identical wills in tandem. Viola’s will left her entire estate to Norman, with their seven (7) children as beneficiaries should Norman predecease her. Norman likewise left his entire estate to Viola with their children as beneficiaries in the event that Viola predeceased him.
As it turned out Viola predeceased Norman in 2007 and one of the decedent’s children served as sole executor. In 2010 Norman died and the children, as beneficiaries, were entitled to a share of Norman’s estate. A beneficiary of Norman’s Estate, a second of the seven (7) children petitioned the court to remove the executor of Viola’s estate after finding out that the executor was depleting the assets. Viola’s executor, however, claimed his sibling lacked standing as the only beneficiary under Viola’s will was Norman making Norman or his estate the only entity with standing to petition for his removal. The Delaware County Orphans’ Court, however, distinguished the case from Kilpatrick’s Estate. In Kilpatrick’s Estate, “the Court refused to allow the moving party to piggy-back on his deceased wife’s interest out of a desire to increase his distribution from his deceased wife’s estate. From that reasoning, it is clear that the Court found that the moving party had no direct interest in the estate because the moving party had no connection to the estate – i.e. as next of kin, beneficiary, etc. – but, rather, had only indirect interest through his deceased wife’s direct interest.” Delaware County Orphans’ Court concluded therefore that “it follows that this logic does not preclude a situation where one who is not a direct beneficiary under the will but is a next of kin of the decedent has standing to petition to remove an executor.” Delaware County relied upon the totality of the circumstances including the broader testamentary plan of Viola and Norman.
Delaware County likewise distinguished itself from the Bucks County’s decision in DiDio, which did not have a contingent beneficiary relying on Viola and Norman’s larger testamentary plan. Delaware County accordingly overruled the preliminary objections and found that the petitioner as a beneficiary under Norman’s will had standing to remove the executor of Viola’s will.
If you or someone you know is facing a situation where the executor or executrix of your loved one’s will is engaging in conduct which you believe to be inappropriate, contact a lawyer as you may have rights to remove that person as your deceased loved one’s representative. Contact The Pagano Law Firm, a Delaware County Law Firm and talk to an experienced attorney.