Special Administration of Decedent’s Estate

Protecting and preserving assets in a decedent’s estate may require important actions to be taken soon after the decedent’s death and before a general probate administration commences. 

For example, if the decedent’s estate includes investment or business assets were owned by the decedent individually, and not jointly or inside a trust and/or business entity, e.g., LLC or Partnership, then protecting and preserving such assets may require the immediate appointment of a personal representative; sooner than when a personal representative is otherwise eventually appointed under the primary petition for probate.

          In California, section 8540 of the Probate Code provides that, “(a) if the circumstances of the estate require the immediate appointment of a personal representative, the court may appoint a special administrator to exercise any powers that may be appropriate under the circumstances for the preservation of the estate.”   

Section 8540 fashions the scope of the appointment to the circumstances.  That is, “(b) the appointment may be for a specified term, to perform particular acts, or on any other terms specified in the court order.”  Section 8544 provides the special administrator with so-called “limited powers” to do the following: “(1) Take possession of all of the real and personal property of the estate of the decedent and preserve it from damage, waste, and injury; (2) Collect all claims, rents, and other income belonging to the estate; (3) Commence and maintain or defend suits and other legal proceedings; and (4) Sell perishable property.”  Additional specific powers may be requested as needed. 

For example, a special administrator may be appointed to control the finances of a business so that its employee payroll and other business expenses are timely paid.  Otherwise, a going business might fail and the estate lose a valuable asset.  Often the same person is petitioning to be appointed as the general personal representative is appointed as the interim special administrator.

          Sometimes even “general powers” – the same as granted the personal representative appointed under a general petition for probate — are also granted when the special administration is expected to be long lasting.  Consider a will contest where competing petitions to appoint different persons as the personal representative are before the superior court.  Pending the outcome of the will contest lawsuit, a special administrator may serve for months before a personal representative is eventually appointed.  The administration of the estate cannot be delayed that long.  In such a situation a neutral professional private fiduciary is often appointed to serve as special administrator.

          If the special administrator is granted only limited powers, he or she has a limited scope of authority and responsibility respecting the estate.  That is, the special administrator with limited authority does not notify creditors of the estate to file creditor claims and does not deal with preparing the decedent’s last income tax returns.

          A petition for special administration can only be filed when a petition for general administration has already been filed (or when both are filed at the same time).  The general administration is about notifying and paying creditors, filing tax returns and paying tax liabilities, and distributing assets to the beneficiaries of the estate.  Whereas any interim special administration is about safeguarding and preserving the estate’s assets pending the general administration.

The foregoing is not legal advice.  Anyone confronting the issue of protecting and preserving the assets of a decedent’s estate should seek appropriate legal and investment counsel before proceeding.  Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.