Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult an attorney for guidance tailored to your situation.
Detailed Answer
Under North Dakota law, any interested person—such as an heir, beneficiary or creditor—may ask the court to remove a personal representative who mishandles estate assets. The removal process follows the procedural and substantive rules in the North Dakota Century Code (NDCC).
- Who May Petition
An “interested person” includes heirs, devisees, beneficiaries, creditors or others with a financial interest in the estate. You must demonstrate a direct stake in the outcome.
- Grounds for Removal
Under N.D.C.C. § 30.1-17-17, courts may remove a personal representative for gross misconduct, willful neglect of duty, breach of fiduciary duty or mismanagement of estate assets. Examples include diverting funds, failing to inventory property or ignoring creditor claims.
- Preparing the Petition
File a written petition in the county where the estate is open. The petition must:
- Identify the estate and current personal representative.
- State your interest and specify acts of mismanagement.
- Cite the statutory grounds under N.D.C.C. § 30.1-17-17.
- Request removal and, if desired, appointment of a successor.
- Service and Notice
Serve the petition and a notice of hearing on the personal representative and other interested persons at least ten days before the hearing. Follow court rules for service by mail or personal delivery.
- Hearing
The court schedules a hearing to consider evidence. You should present documentation—such as financial records, bank statements or affidavits—showing the representative’s misconduct. The representative may respond with their own evidence or defenses.
- Court Decision
After the hearing, the judge may:
- Dismiss the petition if insufficient proof exists.
- Remove the personal representative and surcharge for any losses under N.D.C.C. § 30.1-17-16.
- Appoint a successor representative to complete estate administration.
Helpful Hints
- Document every transaction. Keep copies of account statements and correspondence.
- Review the estate inventory and accountings for discrepancies early.
- Consult court rules for service of process—missing a deadline may delay your petition.
- Gather witness statements or affidavits from co-executors, heirs or creditors.
- Consider mediation or settlement before filing, if appropriate.
- Track all court dates and deadlines to avoid forfeiture of your petition.