Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under Montana law, an interested person may petition the probate court to remove a personal representative if there is evidence of misconduct, mismanagement, or breach of fiduciary duty. The key statutes governing this process are Mont. Code Ann. § 72-3-727 and § 72-3-728.
- Determine eligibility: Under Mont. Code Ann. § 72-1-201, “interested persons” include heirs, beneficiaries, creditors, and spouses. Ensure you qualify.
- Prepare the petition: File in the probate division of the district court in the county handling the estate. Specify the representative’s name, the estate file number, and facts such as failure to account, unauthorized distributions, or misappropriation of assets.
- File and pay fees: Submit the petition with the court clerk and pay the applicable filing fee.
- Serve notice: Serve a copy of the petition and hearing notice on the personal representative and all interested persons at least 10 days before the hearing (see Mont. R. Civ. P. 4(d)).
- Attend the hearing: Present evidence of mishandling assets and any accounting records. The personal representative may defend their actions.
- Court decision and successor appointment: If the court finds removal justified, it will remove the personal representative and appoint a successor. The court may consider the nominated successor in your petition or follow priority rules under § 72-3-304.
Helpful Hints
- Gather detailed records: Compile bank statements, ledgers, and correspondence.
- Understand deadlines: Note any local court rules on timing and service requirements.
- Notify all interested persons: Proper service prevents delays or objections.
- Consider mediation: Some courts encourage resolving disputes before a formal hearing.
- Consult an attorney: An attorney can ensure compliance with procedural rules and deadlines.
- Keep copies: Maintain duplicates of all filings and proofs of service.