There are two types of authority your attorney can ask for in your probate case under the California Independent Administration of Estates Act (“IAEA”). Which is better for YOU? I look at each case individually and make the decision that makes the most sense for you the client. There are counter-balancing issues on each side and we want to come up with the best decision in each case. Full IAEA is almost mandatory in some cases and is unnecessary in others.
UPDATE: I am updating this post in June of 2020. We had three months of Court closures, limited to no court staff, some courts not processing filings, and most courts now allowing Zoom appearances. This all because of the Covid crisis. Now more than ever you can’t afford limited IAEA in any case where you want to sell real estate. Do not do it! If you are going to the Administrator or Executor you need full IAEA!
Before I go on how do you know which you are asking for in a probate case? You look at the probate petition and it asks what type of IAEA authority you want.
What about if a person has already been named Administrator or Executor, how would you know what their authority is? You would look at the Court order. The Court order, in a California probate case indicates which type of IAEA authority a person has.
Now let’s go on to the discussion….
“Full authority” basically allows the Personal Representative (“PR”) to do almost anything they want without prior Court approval. That’s not to say they won’t be subject to later questioning by the Court or a beneficiary but they can take care of business without delay. This includes selling personal property, selling stocks, and even selling real estate. In some instances the PR is required to send a notice of proposed action 15 days prior to taking the action but not all cases. That 15 day notice gives the beneficiaries the opportunity to object if they don’t think it’s a good decision. However, by and large with full authority the PR can take care of business without delay and this can be helpful.
This full authority is of particular importance when there is real estate that needs to be sold. This is because limited authority requires Court approval of the sale and in this horrible real estate market going to Court for confirmation often results in losing the buyer.
There are a few different ways for the PR to get full authority and different Judges rule differently but in generally the simplest way to get full authority is for the PR to post a surety bond (similar to insurance) or have all the heirs waive the requirement of a bond. It is my professional opinion that all efforts should be made to have full authority when there is real estate. Without full authority it will be nearly impossible to sell the real estate for a good price.
What if there is not real estate? Well then limited authority is probably fine. There are no practical limitations for other assets and most Courts will issue limited authority without a bond or with a minimal bond amount.
Some Courts will dig deeper and see that with limited authority a PR could still easily abscond with the estate and thus require all assets be put into blocked accounts or not allow the PR to take control of any cash. Again, each case and each Judge is different. The key is fully evaluating all assets and all risks before that first Court date so that the right choices are made. That is, whether you are the proposed PR or you are an heir of the estate. It’s important to pay attention before that first Court date.
If you are an heir maybe you want the PR to be bonded!? Hiring an attorney to help you is a good idea and we can do that. We call it “beneficiary representation.” It means to monitor the probate and secure your position in the probate so you get what you are entitled to. In some cases we can do that based on a future payment.
In the end there is a lot of thought into each box that is checked on the probate petition. Make sure you are aware what they all mean so you are protected as an heir and/or aware of your responsibilities as a PR. In either case we can help!