## Facts

- Carol G. Bost died leaving a substantial estate composed primarily of real property.
- Her will created a testamentary trust for the benefit of her son, Stephen Bost, and Stephen’s wife and children.
- The will named attorney Phillip Kurtz as executor of the estate and trustee of the testamentary trust.
- Kurtz had represented Carol in other matters before her death and disclosed in his executor application that a later “recapitulation” would determine whether he or the estate owed money for costs and fees; the recapitulation was not provided until months after the three-month statutory period governing an executor’s claim against an estate had expired.
- Kurtz failed to file an inventory within the statutory period; the probate court removed him on its own motion, later vacating that order after the inventory was filed.
- The probate court directed Kurtz to file an accounting of costs and legal fees incurred and amounts already paid to him; Kurtz did not timely comply.
- Communication between Kurtz and Stephen Bost deteriorated, with letters and calls going unanswered.
- Without applying to the probate court, Kurtz paid himself $150 for services performed for the decedent before death.
- Kurtz paid himself and his attorney about $18,000 in fiduciary and attorney fees before the estate was fully administered and without developing a method to satisfy the estate’s obligations.
- Kurtz obtained a one-year extension for payment of federal estate taxes, causing the estate to incur significant interest on a large tax liability.
- Stephen Bost moved to remove Kurtz as executor, and the probate court ordered Kurtz’s removal.
- Kurtz appealed to the Eighth District Court of Appeals, arguing the removal motion was procedurally defective, the evidence was insufficient under a clear-and-convincing standard, and the probate court abused its discretion.

## Issues

1. May a probate court remove an executor, in its discretion, when removal serves the estate’s best interests even if the executor’s conduct does not amount to legal violations or actual injury to the estate?
2. Must a removal order be supported by clear and convincing evidence?
3. Was removal improper because the motion was not made by at least half of the persons interested in the estate, and, on this record, did the probate court abuse its discretion in removing the executor?

## Decision

- The court of appeals affirmed the probate court’s order removing Kurtz as executor.
- Removal of an executor is discretionary with the probate court and turns on whether removal serves the best interests of the estate.
- The executor’s conduct need not constitute violations of law or cause actual injury to the estate to justify removal.
- The probate court’s finding supporting removal does not need to be supported by clear and convincing evidence.
- Given the executor’s delays and failures in administration, untimely compliance with court directives, premature payment of fiduciary and attorney fees, and other administration problems, the probate court did not abuse its discretion.

## Legal Principles

- Probate courts have supervisory authority over estate fiduciaries and may remove an executor in the exercise of sound judicial discretion.
- The controlling question is whether removal serves the best interests of the estate; removal may be warranted even without proof of illegality or demonstrated financial loss.
- No clear-and-convincing-evidence burden applies to an order removing an executor; the probate court’s decision is reviewed for abuse of discretion.
- Procedural objections to who joined the motion do not bar removal where the probate court properly exercises its authority to protect the estate.
- Delays in performing required duties, failure to timely follow court orders, premature self-payment of fees, and decisions that impose avoidable costs on the estate may support a discretionary removal order.

## Conclusion

The Eighth District affirmed the probate court’s removal of Phillip Kurtz as executor of Carol G. Bost’s estate, holding that removal is committed to the probate court’s discretion and may be ordered when the court finds it serves the estate’s best interests, without requiring clear and convincing proof of wrongdoing, statutory violations, or actual injury to the estate.


In re Estate of Bost, 460 N.E.2d 1156, 10 Ohio App. 3d 147 (1983)