§ 30-2454 — Termination of appointment by removal; cause; procedure

Nebraska § 30-2454

• Jurisdiction: Nebraska
• Ch. 30: Decedents' Estates; Protection of Persons and Property

Text

(a) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in section 30-2450 , after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
(b) Cause for removal exists when removal would be 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. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.

Legislative History

Source: Laws 1974, LB 354, § 132, UPC § 3-611. Annotations: Once a personal representative is prohibited from acting under this section, an interested party may thereafter move under section 30-2457 for the appointment of a special administrator, based on the facts that the personal representative has received notice under this section and cannot act and that the appointment of a special administrator would be appropriate to preserve the estate or to secure its proper administration. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008). Taken together, this section and section 30-2457 set forth a procedure by which to suspend and remove a personal representative and appoint a special administrator. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008). Under this section, once the personal representative receives notice of a petition seeking his or her removal, he or she "shall not act," except in limited circumstances. Thus, notice to the personal representative under this section effectively suspends the personal representative. In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008). A proceeding under this section to remove a personal representative for cause is a special proceeding within the meaning of section 25-1902. In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007). A proceeding under this section to remove a personal representative for cause is a special proceeding within the meaning of section 25-1902 and therefore is a final order and is appealable, even though it may not terminate the action or constitute a final disposition of the case. Failure to pay claims within the time limited by the court is not cause for removal of a personal representative when there are no funds with which to pay the claims, unless it appears that absent neglect on the part of the personal representative funds would have been available. In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992). Order of county court dismissing motion to remove personal representative was appealable. In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989). Under subsection (b) of this section, the county court erred in failing to remove a personal representative who failed to comply with a progression order with respect to the filing of a federal estate tax return. In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989). In order to remove a personal representative for cause, an interested person must file a petition for removal; an oral request at a hearing is insufficient for removal. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013). In the absence of a petition for removal of the personal representative and notice and hearing thereupon, the court cannot remove a personal representative. In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013). Under subsection (b) of this section, the county court did not err in removing a personal representative who did not file inventory within the time period described in this section, failed to keep the remaining heirs appraised of the status of the inventory despite several requests for information, may have had a conflict of interest with the estate, failed to obtain an appraisal for the home despite requests from other heirs to do so, and claimed ownership of joint bank accounts which may have contained comingled funds. In re Estate of Webb, 20 Neb. App. 12, 817 N.W.2d 304 (2012).