SUCCESSION REPRESENTATIVE REMOVALThe succession representative is responsible for collecting, preserving, and managing the property of the succession in accordance with law. During the succession, the succession representative is treated as owning all property of the succession and having the right to enforce all debts of the succession.Who can Serve as Personal Representative in Louisiana? If the decedent had a Last Will and Testament, a person is named in the will as executor will usually serve as the succession representative, as long as that person is not:
- Under eighteen years of age
- Mentally incompetent
- A convicted felon
- A nonresident of the state who has not appointed a resident agent for service of process and caused such appointment to be filed in the succession proceeding
- A corporation that is not authorized to perform the duties of the office of succession representative in Louisiana or
- A person who, after a hearing, is determined to be unfit for appointment because of a bad moral character.
- If the estate will be distributed under intestate law (no will) or if a dative testamentary executor (someone other than the executor named in the Last Will and Testament) will be appointed, the succession representative must, in addition to meeting these requirements, be:
- A surviving spouse, heir, or legatee
- A legal representative of an heir or legatee
- A creditor decedent or the estate
- The nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee or
- A co-owner of real estate with the decedent.
If more than one person wants to serve as succession representative of an intestate succession, the court will give priority to the best qualified among the surviving spouse, competent heirs or legatees, or the legal representatives of any incompetent heirs or legatees of the deceased, then to the best qualified of their nominees, then to the best qualified of the creditors of the deceased or a creditor of the estate of the deceased, or a co-owner of immovable property with the deceased. In this context, “best qualified” means the person with the best qualifications (personally and by training and experience) to handle the succession. If no one meeting these requirements applies for appointment as succession representative within three months from the date of death, the court can appoint an attorney as administrator and set his or her compensation. The attorney would be governed by the same rules that apply to other succession representatives.
Louisiana Personal Representative's Bond Requirements
The succession representative is required to post bond (security) to insure his or her performance of duties. This bond would is usually issued by an insurance company. The amount of the bond must exceed by one-fourth the total value of all property of the estate. For example, if the assets of the estate are worth $500,000, the representative's bond would be no less than $625,000 ($500,000 X 1.25). The court has the discretion to lower the bond if it can be shown that it is more than what is needed to protect the creditors and heirs.
A person named in a Last Will and Testament as executor is usually not required to post bond. Neither is personal representative in an independent administration. In either case, though, the surviving spouse, forced heirs, or creditors can require a bond.
If the succession representative fails to meet any or some of the above qualifications or requirements, he or she is subject to removal by the court.
Additionally, a succession representative can be removed by the court if the representative fails to qualify for the office within 10 days after his or her appointment or confirmation.
Moreover, the court may remove any succession representative who has become incapable of discharging the duties of his office, has mismanaged the estate, or has failed to perform any duty imposed by law or by order of the court.
But that removal will typically occur only if an aggrieved party files a motion with the court for the removal. The court will not usually remove a succession representative on its own action, although it has the authority for such a removal.
If you believe you have grounds to remove a succession representative who is not looking after your best interests or the interests of the estate, contact our law firm for a FREE CONSULTATION.