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In reference to a probate matter: My Aunt passed away and did not have a will, her estate is going through probate.

San Francisco, CA |

A distant cousin filed for administrator. The court granted the petition and at this point he has been administrator for going on 9 months. He is also a heir to the estate through his deceased mother. I am a interested party with a $75,000.00 creditors claim against the estate for services rendered. Since the administrator has been appointed the house has caught on fire, ( 5 days after the admin. purchased fire insurance) now I find out he has sold part of his interest to a inheritance loan company...the house is in a bad condition, he was supposed to be getting it ready for sale, but instead a fire and a loan against it????? The grass has grown up all around it it looks terrible and he took her car. Is their anything I can do to contest his position? I am worried he is taking advantage

Attorney Answers 5


  1. Best answer

    This is an all-too-familiar scenario. I concur that you will have a conflict of interest with your creditor's claim; however you can still ask to be appointed in your petition and use a third-party professional fiduciary as a fallback position. The current administrator can be removed for violating a number of fiduciary duties (preserve assets, make them productive for the estate, keep beneficiaries and creditors informed, etc.). His assignment to the inheritance loan company is probative of his intent - depending upon the terms of that loan, he may have little interest in maximizing the value of the estate for the benefit of heirs and beneficiaries. At a minimum, you should request that he post a bond (if he has not posted one already) to indemnify the estate for losses caused by his negligence. Lastly, surcharge should be considered if there is an expense involved in cleaning up the mess his inaction created. Consult a probate attorney with experience with the local county probate court as well as litigation. Even if it does not turn into a contested matter, having counsel who is not squeamish about trying cases, so long as the economics make sense, is a benefit in these cases.

    This is legal information only and not meant to provide legal advice. Many issues that seem straightforward at first are often complicated by facts not revealed in a hypothetical posed by a member of the public. You should always consult directly with your attorney in order to ensure the issue is thoroughly discussed and that the proper course of action is taken.


  2. Talk it over with an attorney--you can have him removed if it looks like he's causing "waste" of the estate assets. You can also ask the court to surcharge him for the damage his negligence has caused.

    This answer is intended, but not promised or guaranteed, to be correct, complete and up-to-date, and is of a general nature rather than specific legal advice. This answer is not intended to be a source of advertising, solicitation or legal advice.


  3. Agree with Attorney Johnson. So you make an informed decision on how to proceed, consult with an attorney.

    Mr.Scalise offers a FREE consultation; he may be reached at 805-244-6850 or by email (craig@scaliselawfirm.com). My responses to questions posted here intended as helpful legal information not legal advice. The information I post does not create an attorney-client relationship. Mr. Scalise is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him/her.


  4. You should send a letter asking him for his plan to wrap up the estate and request that he address your concerns. If he ignores you or does not respond with a plan, you should have enough to go to the court and request the appointment of a new administrator - a professional or corporate. Im not sure if the court would allow you because you have a conflict with the estate.

    Consult a local probate attorney.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.


  5. As a creditor of the estate you have standing to file a Petition seeking to remove the Administrator for breach of his fiduciary duties owed to all interested parties (you being in such category). Probate courts can surcharge the fiduciary for any damages caused as well as legal fees incurred necessarily. You might want to have a talk with the Administrator first telling him what you can and will do if he does not do his job.

    This is not intended to be giving legal advice and this topic can be a complex area where the advice of an attorney should be obtained.

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