In re Estate of Bost

Carol G. Bost’s will established a testamentary trust for the benefit of her son, Stephen Bost (plaintiff), and Stephen’s wife and children. Carol’s will named Phillip Kurtz (defendant) as executor of her estate and trustee of the testamentary trust. Kurtz failed to perform several of his duties as executor. Kurtz was an attorney and had been representing Carol in other litigation. The probate court directed Kurtz to file an accounting of the costs and legal fees incurred as well as those that had already been paid to Kurtz. Kurtz did not do so within the applicable time period. Kurtz did not file an inventory of the estate within the statutory time period. Kurtz paid himself and his attorney fiduciary and attorney’s fees before the estate was fully administered and a method had been determined to pay the estate’s obligations. Finally, Kurtz took a one-year extension on federal estate taxes, causing the estate to incur a 20 percent interest payment on a significant tax liability. Stephen moved to have Kurtz removed as executor, and the probate court ordered Kurtz’s removal. Kurtz appealed, arguing that the court erred in granting the removal because the motion was not made by at least half the persons with an interest in the estate, the probate court’s finding was not supported by clear and convincing evidence, and the court abused its discretion in removing him.