Estate Law Questions? Ask an Estate Lawyer.
A few minutes please as I look into this.
I have reviewed the probate codes and verified by a brief check on case law and could find no authority for such a petition. However, there is no statute expressly precluding the filing of such a petition. However, per the intestate statute, the property is distributed pro rata to one's heirs; the only exception to this that I could find is in the event of murder of the decedent. (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=00001-01000&file=250-259). Otherwise, the court will comply with the directive of the legislature and distribute the property according to the laws of intestate succession. One can, theoretically, petition the court for approval for a non pro rata distribution; however, even if granted, the personal representative would subject him/herself to personal liability should an heir challenge the distribution, since it's in violation of the intestacy laws; the only way to avoid that would be to obtain a waiver and release of liability from the heirs. The idea of intestate statutes is so that the court has a very clear and precise manner in which to distribute property in the absence of estate planning (ie wills/trusts) and the legislature has enacted that statute so everyone involved are very clear as to their respective rights
Also, a personal representative has a duty to the estate, and that includes treating all heirs equally; so if the PR attempts to distinguish between the heirs, that can result in allegations of breach of fiduciary duties (and personal liability).
For example, please see # ***** of attached
for instructions on petitioning for final distribution.
These codes deal with a fiduciary duty of a trustee, and courts use this when considering the fiduciary duty of similarly responsible positions (ie personal representative, executor).
Should one wish to proceed, an attorney would need to do detailed research in order to prepare a brief attempting to find a case that fits the circumstances of the case, which would justify an unequal distribution contrary to the laws of the intestate statutes. An attorney can be located here: http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx
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