A. Any interested person may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the district court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to such other persons as the district court may direct. Except as otherwise ordered as provided in Section 3-607 [45-3-607 NMSA 1978], 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 district 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:

(1) removal would be in the best interests of the estate;

(2) it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment;

(3) the personal representative has disregarded an order of the district court;

(4) the personal representative has become incapable of discharging the duties of his office;

(5) the personal representative has mismanaged the estate; or

(6) the personal representative failed to perform any duty pertaining to the office.

C. 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 New Mexico to administer local assets.

History: 1953 Comp., § 32A-3-611, enacted by Laws 1975, ch. 257, § 3-611.

Official comments. — See Commissioners on Uniform State Law official comment to 3-611 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 31-1-26 and 31-1-28, 1953 Comp.

Court may reexamine facts of appointment. — Under former law, a probate court had power to reexamine the facts upon which an administratrix had been appointed, and to remove her if necessary. Dow v. Simpson, 1912-NMSC-043, 17 N.M. 357, 132 P. 568, adhered to on rehearing, 1913-NMSC-026, 17 N.M. 369, 132 P. 572; Koury v. Castillo, 1905-NMSC-004, 13 N.M. 26, 79 P. 293 (decided under former law).

Executor's acting on advice of counsel not misconduct. — Under former law, a trial court does not abuse its discretion in refusing to remove an executor for misconduct where evidence indicates that the executor may have acted on the advice of counsel and an accountant who had previously handled decedent's financial affairs, and thus did not breach his duty intentionally. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542.

Invalidity of will not basis for removal. — The court erred in removing the personal representative of the estate without conducting an evidentiary hearing and without expressly specifying the basis for his removal. The fact that portions of the decedent's will were determined to be invalid did not constitute a valid basis for removal of the personal representative. In re Estate of Boyer, 1994-NMCA-005, 117 N.M. 74, 868 P.2d 1299.

Removal of personal representative. — Pursuit of removal claim under this section can be characterized not as attacks on the validity of the will or of a provision of the will, but as a legal action under a valid will with valid provisions to enforce rights granted expressly by statute. Redman-Tafoya v. Armijo, 2006-NMCA-011, 138 N.M. 836, 126 P.3d 1200.

Appeal bond. — An appeal from a judgment probating a will and removing an administrator of an estate by the party so removed, as administrator, cannot be perfected by such party without the giving of an appeal bond or undertaking, because in such case such party is not appealing in his representative capacity. Baca v. Winters, 1920-NMSC-065, 26 N.M. 340, 192 P. 479.

Am. Jur. 2d, A.L.R. and C.J.S. references. — What effects removal of executor or administrator, 8 A.L.R. 175.

Revocation of letters testamentary as affecting expenses and disbursements by executor or administrator thereafter, 31 A.L.R. 846.

Changes in corporate organization as affecting status of corporation as executor or administrator, 61 A.L.R. 994, 131 A.L.R. 753.

Revocation of grant of administration, on ground that administration is not necessary, 70 A.L.R. 386.

Effect of proceeding to supplant administrator or executor, or of appeal from order appointing or removing him, upon rights of persons who dealt with him pending such proceedings or appeal, 99 A.L.R. 862.

Insolvency of, or appointment of receiver or other liquidator for, corporation, as affecting its status as executor, administrator, guardian or trustee, 102 A.L.R. 124.

Personal interest of executor or administrator adverse to or conflicting with those of other persons interested in estate as ground for revocation of letters or removal, 119 A.L.R. 306.

Improper handling of funds, investments or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535.

Removal of executor because of delay in exercising power of sale under will, 132 A.L.R. 1479.

Failure of executor, administrator, trustee or guardian to disclose self-dealing, as ground for vacating order or decree settling account, 132 A.L.R. 1522.

Right of appeal from order on application for removal of personal representative, guardian or trustee, 37 A.L.R.2d 751.

Requisites of notice and hearing in court proceedings for removal of personal representative, 47 A.L.R.2d 307.

Power and responsibility of executor or administrator to compromise claim due estate, 72 A.L.R.2d 191.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 96 A.L.R.3d 1102.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal, 33 A.L.R.4th 708.

33 C.J.S. Executors and Administrators § 89.