EXECUTIVE COMMITTEE¹ PROPOSAL FOR "ELECTIVE ADMINISTRATION" OF DECEDENTS’ ESTATES

By Richard A. Burger, et al.

I. INTRODUCTION

The Executive Committee of the Trusts and Estates Section of the State Bar of California is considering an alternative to formal probate administration. This proposal, called "Elective Administration," would allow a personal representative to administer a probate estate with a minimum of court supervision. The purpose of this procedure is to allow the use of a simpler probate proceeding if the beneficiaries are cooperative. Elective Administration would be an alternative to the current system for administering probate estates. The current system would remain intact and would be utilized for those estates where Elective Administration is either unavailable or inappropriate.

Elective Administration would require that the testator’s will explicitly authorize the procedure. If a person died intestate, or if the testator’s will did not include the authorizing language, unanimous consent of the estate’s beneficiaries would be required. Elective Administration would impose similar legal obligations and fiduciary duties on the personal representative as currently exist. These responsibilities could be enforced by any beneficiary, but the court would not supervise the administration of the estate unless a beneficiary filed a petition requesting the court’s intervention.