Special Administration

Most probate cases follow a similar pattern. You file your petition, have a court date about 6 weeks later, get appointed and start administering the estate. However, in some cases there are exigent emergencies that need to be dealt with immediately. That is situations that can’t wait 6 weeks. To be clear this doesn’t just mean that you think it’s important but the Judge has to agree.

When should a Special Administrator be considered in a probate estate?

Here are some common examples:

  1. A house is facing foreclosure sale and someone is needed quickly to try and pull the house out of foreclosure;
  2. Other emergency;
  3. When there is uncertainty about a will;
  4. When there is a fight in an estate;
  5. When there are assets to protect;
  6. Operation of a business;
  7. Other times as it may be wise.

A Special Administrator is basically a temporary administrator.  The Special Administrator will administer the estate until the full, or normal, Administrator (or Executor) takes over. Sometimes this is a few weeks and in other cases it can be many months.  In my practice it more often is a short term appointment but it can be long.

A common hypothetical I see is that I am hired days or weeks before the foreclosure sale date. We file both the full probate and petition for special administration at the same time. The full probate will be set for hearing 6 weeks, or so, out. The special administration petition is often set on an “ex parte” basis so as to be heard within 24 or 48 hours. If we can establish an emergency, such as a foreclosure sale date, then the Court will often approve the special administration petition. The approval is often limited in nature but at least it puts the person in a position to try and save the home from the foreclosure sale.

Unique Authority of Special Administration

In some situations the initial grand of special powers may be limited but if there is a competing petition filed on the main probate the powers of special administration can be broadened at the first hearing. I recently had one like that. On an ex parte basis my client was given approval to safeguard the home as burglars were trying to break in repeatedly. At the first hearing a competing petition was filed so we asked the Judge for powers of special administration with full authority under the independent administration of estates act (IAEA) and the Judge granted it. This would not have happened had we not published and given notice to all interested parties. The grant of general powers is enough to take care of most anything in the estate.

Special Administration is unique and each case is different. It’s extremely important that an experienced probate attorney is utilized as there are a number of ways to customize a special admin request. An experienced probate attorney knows the options. If you’d like to speak with me about this or other probate issues, you can contact me at 916-920-5983 or by filling out a contact form.

California probate code 8540-8547 has more information about this and is pasted below for your ease:

PROBATE CODE SECTION 8540-8547

  1. (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.

(b) The appointment may be for a specified term, to perform

particular acts, or on any other terms specified in the court order.

 

  1. (a) Appointment of a special administrator may be made at any

time without notice or on such notice to interested persons as the

court deems reasonable.

(b) In making the appointment, the court shall ordinarily give

preference to the person entitled to appointment as personal

representative. The court may appoint the public administrator.

(c) In the case of an appointment to perform a particular act,

request for approval of the act may be included in the petition for

appointment, and approval may be made on the same notice and at the

same time as the appointment.

(d) The court may act, if necessary, to remedy any errors made in

the appointment.

 

  1. (a) The clerk shall issue letters to the special

administrator after both of the following conditions are satisfied:

(1) The special administrator gives any bond that may be required

by the court under Section 8480.

(2) The special administrator takes the usual oath attached to or

endorsed on the letters.

(b) Subdivision (a) does not apply to the public administrator.

(c) The letters of a special administrator appointed to perform a

particular act shall include a notation of the particular act the

special administrator was appointed to perform.

 

  1. Subject to subdivision (b) of Section 8481, the court shall

direct that no bond be given in either of the following cases:

(a) The will waives the requirement of a bond and the person named

as executor in the will is appointed special administrator.

(b) All beneficiaries waive in writing the requirement of a bond

and the written waivers are attached to the petition for appointment

of the special administrator. This paragraph does not apply if the

will requires a bond.

 

  1. (a) Except to the extent the order appointing a special

administrator prescribes terms, the special administrator has the

power to do all of the following without further order of the court:

(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.

(4) Sell perishable property.

(b) Except to the extent the order prescribes terms, the special

administrator has the power to do all of the following on order of

the court:

(1) Borrow money, or lease, mortgage, or execute a deed of trust

on real property, in the same manner as an administrator.

(2) Pay the interest due or all or any part of an obligation

secured by a mortgage, lien, or deed of trust on property in the

estate, where there is danger that the holder of the security may

enforce or foreclose on the obligation and the property exceeds in

value the amount of the obligation. This power may be ordered only on

petition of the special administrator or any interested person, with

any notice that the court deems proper, and shall remain in effect

until appointment of a successor personal representative. The order

may also direct that interest not yet accrued be paid as it becomes

due, and the order shall remain in effect and cover the future

interest unless and until for good cause set aside or modified by the

court in the same manner as for the original order.

(3) Exercise other powers that are conferred by order of the

court.

(c) Except where the powers, duties, and obligations of a general

personal representative are granted under Section 8545, the special

administrator is not a proper party to an action on a claim against

the decedent.

(d) A special administrator appointed to perform a particular act

has no duty to take any other action to protect the estate.

 

  1. (a) Notwithstanding Section 8544, the court may grant a

special administrator the same powers, duties, and obligations as a

general personal representative where to do so appears proper.

Notwithstanding Section 8541, if letters have not previously been

issued to a general personal representative, the grant shall be on

the same notice required under Section 8003 for appointment of a

personal representative, unless the appointment is made at a hearing

on a petition for appointment of a general personal representative

and the notice of that petition required under Section 8003 has been

given.

(b) Subject to Section 8543, the court may require as a condition

of the grant that the special administrator give any additional bond

that the court deems proper. From the time of approving and filing

any required additional bond, the special administrator shall have

the powers, duties, and obligations of a general personal

representative.

(c) If a grant is made under this section, the letters shall

recite that the special administrator has the powers, duties, and

obligations of a general personal representative.

 

  1. (a) The powers of a special administrator cease on issuance

of letters to a general personal representative or as otherwise

directed by the court.

(b) The special administrator shall promptly deliver to the

general personal representative:

(1) All property of the estate in the possession of the special

administrator. The court may authorize the special administrator to

complete a sale or other transaction affecting property in the

possession of the special administrator.

(2) A list of all creditor claims of which the special

administrator has knowledge. The list shall show the name and address

of each creditor, the amount of the claim, and what action has been

taken with respect to the claim. A copy of the list shall be filed in

the court.

(c) The special administrator shall account in the same manner as

a general personal representative is required to account. If the same

person acts as both special administrator and general personal

representative, the account of the special administrator may be

combined with the first account of the general personal

representative.

 

  1. (a) Subject to the limitations of this section, the court

shall fix the compensation of the special administrator and the

compensation of the attorney of the special administrator.

(b) The compensation of the special administrator shall not be

allowed until the close of administration, unless the general

personal representative joins in the petition for allowance of the

special administrator’s compensation or the court in its discretion

so allows. Compensation for extraordinary services of a special

administrator may be allowed on settlement of the final account of

the special administrator. The total compensation paid to the special

administrator and general personal representative shall not,

together, exceed the sums provided in Part 7 (commencing with Section

10800) for compensation for the ordinary and extraordinary services

of a personal representative. If the same person does not act as both

special administrator and general personal representative, the

compensation shall be divided in such proportions as the court

determines to be just or as may be agreed to by the special

administrator and general personal representative.

(c) The total compensation paid to the attorneys both of the

special administrator and the general personal representative shall

not, together, exceed the sums provided in Part 7 (commencing with

Section 10800) as compensation for the ordinary and extraordinary

services of attorneys for personal representatives. When the same

attorney does not act for both the special administrator and general

personal representative, the compensation shall be divided between

the attorneys in such proportions as the court determines to be just

or as agreed to by the attorneys.

(d) Compensation of an attorney for extraordinary services to a

special administrator may be awarded in the same manner and subject

to the same standards as for extraordinary services to a general

personal representative, except that the award of compensation to the

attorney may be made on settlement of the final account of the

special administrator.

Ratings and Reviews

10.0John Bernard Palley
Wealth Counsel Member
2015 Best of the Best Badge