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.
Here are some common examples:
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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