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1662 East Centre Avenue
Portage, MI 49002
Ph: 269.324.7344
Fx: 269.324.2767

4625 Beckley Road
Building 400, Suite 4003
Battle Creek, MI 49015
Ph: 269.968.1101
Fx: 269.968.9505


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QUESTION: Our Mother just passed away. Her Will has my brother as the personal representative. That is ridiculous. My Mother has not spoken to him since my Father passed away 20 years ago. They had a falling out years ago and I know My Mother would not want him in charge of her Will. She signed the Will in 1993. Is there anything we can do to stop my brother from being in charge?    

ANSWER:  That’s a tough one. Because your Mother named him in her Will, he has priority under the law to be appointed personal representative. As such, the court will appoint him. You could file a motion with the court to remove him however you have to have legal cause to do so. Saying that they did not get along is not enough. You will have to prove to the court that he disregarded a court order, is incapable of performing the required duties of the personal representative, that he mismanaged the estate; basically that it is in the best interest of the estate to have him removed. I would advise you to contact an attorney who handles probate litigation. The requirements to have him removed are based on laws. The attorney knows how to make legal arguments based on those laws. 

This shows you the importance of having your Wills and Trusts reviewed every 3-5 years. Things change in everyone’s life. From relationships that fall apart to new relationships that flourish. Also, things that were important to you twenty years ago may not be as important now. For instance; twenty years ago you when you had your Will prepared you left everything to your children so they could go to college, buy a home, and start a family. However, now your children are grown. They already graduated from college, they have good jobs, they already started a family, and they have a home. They are successful; they no longer need your money. Maybe now you would feel better if you left your some or all of your money to your church, a charity, or your grandkids. 

The same applies to your Durable Power of Attorney and Durable Power of Attorney for Health Care as well. The person you chose twenty years ago may not even live around here anymore. Or for that matter, may not even be alive. Those documents should be reaffirmed, or re-certified, or even have them re-drafted every 5 years or so. Then provide new copies to your financial institution and health care provider. This is so your bank and/or credit union and also your doctor are assured that your documents accurately reflect your current wishes. The last thing you want to happen is to have someone you have had a falling out with showing up at your bank or doctor’s office and acting on your behalf. 

​Michael B. Walling is an Elder Law attorney with a Master of Laws Degree. He is the Managing attorney of The Elder Law Center and the law firm of Michael B. Walling, PLC. Mr. Walling is also a part-time Professor at Western Michigan University. Please send any questions you would like addressed to: The Elder Law Center, 1662 East Centre Avenue, Portage, Michigan 49002. You may also call (269) 324-7344 to set up a free initial consultation. This column is intended for general information purposes only and should not be considered as legal advice to any particular person.

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