In re Estate of Michaelson

383 N.W.2d 353, 1986 Minn. App. LEXIS 4082
CourtCourt of Appeals of Minnesota
DecidedMarch 11, 1986
DocketNo. C1-85-1824
StatusPublished
Cited by4 cases

This text of 383 N.W.2d 353 (In re Estate of Michaelson) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Michaelson, 383 N.W.2d 353, 1986 Minn. App. LEXIS 4082 (Mich. Ct. App. 1986).

Opinion

OPINION

WOZNIAK, Judge.

Michael Denis Michaelson appeals from an order of the probate court removing him as personal representative of the estate of his mother, Angela Michaelson, and naming a disinterested third party as successor personal representative. We affirm.

FACTS

Angela Michaelson, a widow, died testate on July 27, 1984. She was survived by three sons: appellant Michael Denis Mi-chaelson and respondents Galen C. Michael-son and Timothy L. Michaelson. Appellant resided with his mother until the time of her death and currently resides in her home.

The decedent executed a will and inter vivos trust agreement before she died. At the time of her death, she owned the home in Minneapolis in which appellant now resides, a lake property in Todd County, a vacant lot in Colorado, and two vacant lots in Florida. She also owned miscellaneous household goods, jewelry, clothing, and bank accounts. She owned non-probate assets in the form of joint bank accounts, joint savings bonds, and life insurance policies with named beneficiaries.

Appellant was named as personal representative in the will. His brothers requested appellant to commence a probate proceeding to determine the validity of the will. When appellant took no action, they presented the will for probate on September 24, 1984. Appellant alleges that their petition for probate was denied. They allege that they agreed to withdraw their petition if appellant would agree to promptly file a petition to have the will probated with appellant as personal representative in a supervised administration.

In November 1984, the will was admitted to probate and appellant was named personal representative in a supervised proceeding. At the hearing on the petition to admit the will to probate, according to the respondents, it was agreed that all would meet at the homestead and review the personal property of the estate. It was also agreed that no real estate would be sold without the consent of the probate court.

In August 1984, before the will was admitted to probate, the respondents went to the decedent’s home to recover some personal property from the residence. When appellant did not answer the door, they let themselves in with a key. At that point, appellant appeared and called the Minneapolis police to report a burglary in progress. When the police arrived, they did not interfere with the removal of the property. Respondents allege that they removed only non-probate assets belonging to them; appellant alleges that they removed property of the estate.

After appellant was appointed personal representative, respondents again requested permission to enter the house and to remove some property to which they [355]*355claimed title. Appellant refused to allow them access to the house.

After appellant was appointed personal representative, he placed an advertisement in a local paper offering the Todd County property for sale. He also requested his attorney, by letter dated January 12, 1985, to have this property recorded in the name of Rehabanon, Inc., a corporation which he controls. In this letter to his attorney, appellant also stated:

I have no intention of dividing any property of my mother’s estate or conducting any guided tours. * * * No trespassers will be allowed on the estate without prior written approval.

Appellant placed classified advertisements in a newspaper for the week of January 23-31, offering three ladies’ wristwatches and other items of jewelry for sale. Respondents allege that these watches are property of the estate; appellant alleges that they belong to him.

To date, no progress has been made in probating the estate. Appellant has claimed expenses as personal representative in excess of $15,000 through December 31, 1984. This includes an alleged 451 hours of time, and over $1,000 expended in installing bars on the windows of decedent’s homestead. Appellant has claimed 45 hours of time for talking to “informants” through December 31, 1984.

On January 30, 1985, respondents filed a petition for removal of appellant as personal representative and seeking appointment of a neutral third party. Respondents basically alleged six reasons for appellant’s removal:

1. Refusal to divide the personal property of the estate and attempts to sell items of personal property which respondents allege belong to the estate.
2. Refusal to complete specific bequests made in the will.
3. Attempting to transfer real property of the estate to Rehabanon, Inc., a corporation which he controls.
4. Attempting to sell real property belonging to the estate, in violation of the letters testamentary.
5. Accusing respondents of stealing $250,000 from the estate and removing personal property belonging to the estate, and attempting to “abate” any bequests to petitioners in order to reimburse the estate for the alleged thefts.
6. Claiming excessive expenses as personal representative.

The probate court ordered appellant removed as personal representative on February 28, 1985. On July 2, 1985, the district court issued an order affirming the order of the probate court and appointing a neutral third party as personal representative. Appellant appeals from the district court’s order.

ISSUE

Did the district court abuse its discretion in removing appellant as personal representative of the estate and appointing a neutral third party?

ANALYSIS

Removal of a personal representative of an estate is governed by Minn. Stat. § 524.3-611(b) (1984) which provides:

Cause for removal exists when removal is in the best interests of the estate, or 'if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. In determining the best interests of the estate, the personal representative’s compensation and fees, and administrative expenses, shall also be considered.

In In re Estate of Munson, 238 Minn. 366, 57 N.W.2d 26 (1953), the Minnesota Supreme Court held that the district court acted “entirely within its discretion” in af[356]*356firming the removal of a personal representative where the probate court found:

[T]hat the representative was personally and financially interested as an heir in the administration of the estate; that his position was antagonistic to the administration of the will and the carrying out of its terms; and that he was unsuitable to continue to act as administrator of the estate.

Id. at 370, 57 N.W.2d at 29. See also In re Estate of Matteson, 187 Minn. 291, 245 N.W. 382 (1932) (conflict between interests of personal representative and interests of estate, inter alia, justified removal of personal representative).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Estate of: Bernie E. Pederson, Decedent.
Court of Appeals of Minnesota, 2015
In re the Estate of: Mary Ann Nething
Court of Appeals of Minnesota, 2015
In re the Estate of Neuman
819 N.W.2d 211 (Court of Appeals of Minnesota, 2012)
In Re Estate of Martignacco
689 N.W.2d 262 (Court of Appeals of Minnesota, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
383 N.W.2d 353, 1986 Minn. App. LEXIS 4082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-michaelson-minnctapp-1986.