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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 9912
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Can an administrator of intestate estate petition the court

Customer Question

can an administrator of intestate estate petition the court for approval to do a non pro rata distribution?
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

A few minutes please as I look into this.

Expert:  LegalGems replied 1 year ago.

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

Expert:  LegalGems replied 1 year ago.

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).

Expert:  LegalGems replied 1 year ago.

For example, please see # ***** of attached

http://sfcourts.org/Modules/ShowDocument.aspx?documentid=1512

for instructions on petitioning for final distribution.

Expert:  LegalGems replied 1 year ago.

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).

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=15001-16000&file=16000-16015

Expert:  LegalGems replied 1 year ago.

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

Should you have further questions please post here; otherwise kindly rate positively- this does not result in additional charges to the customer. Thank you.

Expert:  LegalGems replied 1 year ago.

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Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

Should you have further questions please post here to continue our dialogue. Otherwise,

kindly rate positively

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