Warkentin v. Shirey

The probate court did not err in in removing Warkentin as personal representative and substituting Shirey to that position because the evidence was sufficient to support the probate courts findings. The probate court did not err either on waiving the bond requirement for Shirey because Warkentin was asking for additional requirements not in the statutes. Finally, Warkenton’s contention regarding the awarding a division of personal representative fees on purely equitable grounds was premature.

Warkenton appeals a limited judgment from a probate proceeding that resulted in him being removed as personal representative of decedent’s estate. Warkenton first contended that the probate court erred in removing him as personal representative and substituting Shirey to that position. Warkenton then contended that the court erred in waiving the bond requirement for petitioner, contrary to requirements established under ORS 113.105. Finally, Warkenton argues that the court erred by waiving the personal representative fees Shirey should have paid on purely equitable grounds. First the Court of Appeals concluded that “other good cause shown” under ORS 113.195(4) is not limited to the types of wrongful acts on the part of the personal representative described in ORS 113.195(1) to (3) but authorizes the court in its discretion to remove a personal representative to prevent problems from arising in the probate, including discord between the personal representative and the beneficiaries of the estate. Therefore, the probate court did not abuse its discretion in finding that removal of Warkentin was necessary to avoid discord between the beneficiaries and the personal representative concerning the manner of disposition of the estate. As to Warkenton’s second point, the Court of Appeals held that Warkenton was asking the Court to impose more requirements than were in the statute, which the could found it could not do so under ORS 174.010. Finally, Warkenton’s third contention was premature and therefore premature. Affirmed.