Special Administration in Probates

            One of the major drawbacks of administering
a decedent’s estate through probate is the delay in appointing a personal
representative to administer the estate, i.e., the time that passes in between
the decedent’s death and the appointment of a personal representative to
administer the estate.   Even without
opposition to the probate petition, the legal process to get an administrator
(or executor) appointed can take around 4 weeks; depending on how quickly the
petition is filed.  With legal obstacles
or opposition, the process can drag on for many months during which no personal
representative is in charge of the decedent’s estate and unfinished legal
business. 

            During the interim period urgent
matters related to the custody and preservation of the decedent’s estate may
arise that require immediate attention and cannot wait till the general
representative is appointed.  These could
include the day to day operation of a sole proprietorship (business), the sale
of perishable assets, the completion of a pending real estate transaction, and
the protection of assets vulnerable to theft or destruction.  To save the situation the decedent’s heirs or
beneficiaries can petition the court for the appointment of a special
administrator to preserve or defend the estate, pending the appointment of a
personal representative (or executor).

            A special administrator can be
appointed at any time by the court.  The
appointment can be made with or without notice to the other interested parties,
as the court sees fit.   The court will
consider the urgency and the nature of the special administration that is being
requested before deciding what, if any, notice will be required. 

            Often, the person requesting appointment
as special administrator is the same person requesting appointment as the
general personal representative in the pending probate petition.  Sometimes, however, the Public Guardian, a
private fiduciary, or a neutral party will instead be appointed to act as
special administrator.  A private
fiduciary may be necessary if particular skills are needed under the situation.

            The scope and duration of the
special administration can be tailored by the court to suit the situation.  That is, the court has broad flexibility to
grant “any powers that may be appropriate under the circumstances for the
preservation.”  This means granting well
defined powers in order to perform specific functions.  For example, the order might authorize the
special administrator to do all things necessary to manage the on-going affairs
of a sole proprietorship.   Otherwise, if
not tailored, the special administrator has limited powers to take possession
of property, collect income, and commence or defend lawsuits.  The special administrator with limited power
may also, with court order, borrow money and pay interest owed on secured
debts.

            Sometimes general powers of
administration – i.e., the same powers allowed a personal representative – are
granted to a special administrator when doing so “appears proper” to the court.  General powers allow the special
administrator to sell property and to pay or reject creditor claims.  General powers are usually only granted when appointment
of a personal representative will be delayed for months, such as when there is
litigation over the terms of the will (i.e., a will contest) or over who should
be appointed as the personal representative, then granting general powers may
be needed move the estate administration forward. 

            Special administration typically concludes
when the personal representative is appointed.
The special administrator then provides an accounting and turns over assets
to the personal representative.   Sometimes,
however, the court may allow the special administrator to continue and complete
certain tasks.  Naturally, probate and
special administration are best avoided by the decedent transferring his or her
assets into a trust while alive.