Restraint of a Personal Representative Pending Removal

A recent comment asked a very good question – essentially what happens to the Personal Representative after someone has asked the court that they are removed, but before a hearing has actually been held on the matter? The answer to this question can be found in South Carolina Code §62-3-611 which states in relevant part, “after receipt of notice of removal proceedings, the personal representative shall not act (emphasis added) except to account, to correct maladministration, or preserve the estate.” In reading this statute, it seems clear that upon service of pleadings to remove a Personal Representative, the P.R. really shouldn’t be acting as P.R. except in the specific instances provided.

That being said, a large majority of Personal Representatives as not represented by counsel or their counsel is unaware of this language and therefore I always recommend the following:

First, in your Petition to Remove, clearly state that you want the court to restrain the Personal Representative from acting under this section. In many courts, the court itself will send a standard Order Restraining Personal Representative back with your pleadings so that you can serve the Personal Representative with the same.

Second, if you have serious concerns or need to ensure that an act is stopped immediately (for example a closing on a piece of real property or a disbursement that is about to be made), I also suggest you include in your Petition to Remove a specific request under §62-3-607 which asks the court to restrain the Personal Representative and include in parties anyone involved in the transaction of concern.

This statute states:

​Order Restraining Personal Representative

(a) Upon application of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

(b) The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record if any, and to any other parties named defendant in the petition.

Including this request in your Petition to Remove Personal Representative not only clearly indicates to the court that you want the Personal Representative fully restrained, but also gets you an appearance before the court quickly (ten days according to statute). The initial hearing will likely only be on the restraint but will give you an opportunity to express to the court your concerns.

If your petitions are not clear in these requests, it is highly likely that the Personal Representative will continue about their daily business. Even worse, they could respond to the request for their removal by believing that if they are going to be removed, they might as well go ahead and do what they want before the formal hearing. A good probate attorney will always use these sections to ensure there is no confusion as to what should and should not occur between the date of the filing of the removal action and the appearance in court.