An administrator of an estate cannot ever “take everything,” as they are legally obligated to distribute the estate to the decedent’s rightful heirs according to intestate succession laws, which are outlined in California Probate Code sections 6400-6455.
If an administrator has taken everything — or more than their rightful share — it may indicate they are mismanaging the estate or committing theft. Both are serious violations that warrant immediate action from the heirs.
When someone dies without a will (also known as dying intestate), their estate does not become a free-for-all. Instead, it is distributed according to California’s intestate succession laws, which function like a sort of default estate plan. Unlike wills, these statutes generally cannot be contested or overridden.
While intestate succession laws can streamline the probate process by removing ambiguity and the potential for will disputes, they can also produce outcomes that conflict with the decedent’s known wishes. For example, an estranged child the decedent intended to disinherit could receive their entire estate if they are the decedent’s sole surviving heir under the law.
Even if the administrator is aware of a decedent’s intentions, they are legally bound to follow intestate succession laws. In short, they cannot pick and choose who inherits. Disregarding an heir’s legal right to inherit — even with the best of intentions — can result in serious legal consequences for the administrator.
One instance in which an heir with a legal right to inherit may be disqualified from receiving their full share is when there is clear and convincing evidence that they engaged in serious misconduct against the decedent. Under Probate Code section 259, an heir who physically or financially abused a dependent or elderly decedent — and did so in bad faith, with recklessness, fraud or malice — may be treated as having predeceased the decedent, resulting in their inheritance passing to other eligible heirs.
It’s important to note, however, that a successful Section 259 claim does not always lead to total disinheritance. For example, if the misconduct involved the theft of a specific asset — such as a piece of jewelry or artwork — the court may only disqualify the heir from receiving that item and any related damages and costs recovered by the estate. The extent of the disinheritance will usually reflect the scope and severity of the misconduct.
What to Do When the Administrator Takes More Than Their Fair Share
If you suspect that the administrator of an estate has taken more than their rightful share, it’s important to take the matter seriously. Because intestate succession laws are codified in the California Probate Code, there is little room for interpretation about who is entitled to inherit. As a result, an administrator cannot easily claim ignorance if they violate the law.
Administrators are often close relatives of the decedent, and some may mistakenly believe this entitles them to make decisions on the decedent’s behalf. In reality, their authority doesn’t come from their relationship to the decedent but from the court — and their duty is to represent the heirs, not the decedent.
Administrators are fiduciaries, which means they are legally obligated to act in the best interests of the heirs. Any deviation from intestacy laws is a breach of their fiduciary duties and must be appropriately addressed.
For example, if heirs notice that certain assets were removed from the estate by the administrator, the heirs may wish to initiate an action for breach of fiduciary duty against the administrator and seek recovery of the property. Doing so could help restore the estate’s full value and prevent further misconduct or even result in the removal of the administrator.
Ultimately, the type of legal action available will depend on the specific circumstances and severity of the administrator’s alleged misdeeds.
Can an Administrator of an Estate Be Removed?
An administrator can be removed if there is sufficient evidence to show they breached their fiduciary duties and that their actions harmed the estate. That said, removal is a significant legal step and is often considered a last resort. Before pursuing it, you may be able to request the administrator’s emergency suspension to prevent further harm while the situation is investigated.
While removal can temporarily disrupt the administration process and cause delays — or even financial setbacks — it may be necessary to protect the estate and the rightful inheritance of the heirs, particularly if the administrator has demonstrated unethical or dishonest behavior.
To initiate removal, heirs must file a petition with the probate court detailing the administrator’s alleged misdeeds and the legal remedies they are seeking. In some cases, the mere filing of a petition may be enough to prompt the administrator to voluntarily step down in an effort to avoid litigation and personal liability.
If you’re unsure whether removal is the best course of action, a probate attorney can assess the situation and help you determine the most effective remedy.
Can an Administrator of an Estate Be Surcharged?
An administrator can be surcharged — that is, held personally liable — if they violate their fiduciary duties, and those violations result in harm to the estate. A surcharge is intended to reimburse the estate for losses caused by the administrator’s misconduct or mismanagement.
To pursue a surcharge, heirs typically must file a petition with the court detailing the administrator’s alleged misdeeds and the resulting damages. Surcharge requests are often included in petitions seeking other remedies, such as removal, recovery of assets or damages.
Importantly, bad faith is not a prerequisite for a surcharge. Even if the administrator acted without ill intent, they can still be held personally liable if their actions failed to align with the heirs’ best interests or caused harm to the estate.
A probate attorney can help you evaluate whether a surcharge is appropriate based on the specifics of your case.
Executor vs. Administrator: What Is the Difference?
Many people understandably conflate the roles of executors and administrators. Not only are their responsibilities nearly identical, their limitations are, too. Just like executors cannot decide who gets what from an estate, neither can administrators.
Executors preside over testate estates (i.e., estates governed by a will). They are generally nominated in a will and formally appointed by the probate court during the initial probate hearing.
On the other hand, administrators preside over intestate estates. They are appointed according to the order of priority described in Probate Code section 8461, which typically gives first priority to the surviving spouse or registered domestic partner, followed by adult children, other family members, and finally, creditors or other interested parties if no relatives are available or willing to serve. Unless you are specifically listed in this order of priority, you generally cannot become administrator of an estate.
There is also a hybrid role known as an administrator with the will annexed (also called an administrator CTA). This person is appointed when the decedent left a will, but the named executor is unable or unwilling to serve, or has been disqualified by the court. In this situation, the court appoints an administrator to carry out the terms of the will.
Regardless of title, both executors and administrators serve as fiduciaries, meaning they are legally obligated to act in the best interests of the beneficiaries or heirs.
That said, executors may still owe fiduciary duties to heirs who are considered interested parties in testate estates. This is because, even when a will exists, heirs retain certain inheritance rights. For example, if a will contest is successful and the will is invalidated, the estate may pass to the heirs as though the decedent died intestate. In this way, heirs may still inherit — even when a will is initially present — depending on the outcome of the probate process.
What an Administrator Can and Cannot Do
It’s important to understand what an administrator can and cannot do so you can take swift legal action if they overstep their authority. Generally, administrators have the same rights and responsibilities as executors, with one key difference: administrators of intestate estates must follow intestate succession laws when distributing assets, since there is no will to guide them.
If it becomes clear that an administrator has violated their fiduciary duties, it’s crucial to act quickly. The success of any legal action you pursue may depend on how promptly you respond. For instance, if an administrator is siphoning funds from the estate account — which is meant to hold assets on behalf of heirs — they could deplete it before distributions are made. Taking action early increases the likelihood of recovering the misappropriated assets before they disappear for good.
Can an Administrator of an Estate Be a Beneficiary?
Technically speaking, an administrator of an estate cannot be a beneficiary, since intestate estates don’t involve beneficiaries — they involve heirs. That said, administrators can be (and often are) heirs themselves, particularly because close family members are given priority to serve as administrator and are typically the decedent’s legal heirs under intestate succession laws.
While serving as both administrator and heir can present a potential conflict of interest, this dual role isn’t inherently problematic — so long as the administrator carries out their duties impartially and doesn’t allow personal interests to interfere with their fair administration of the estate.
However, if an administrator uses their position to benefit themselves at the expense of the other heirs — for example, by hiding assets, misappropriating funds or favoring themselves when making distributions — they are in clear violation of their fiduciary duties.
Can an Administrator of an Estate Remove an Heir?
An administrator of an estate does not have the authority to remove an heir. However, they can petition the court to have an heir deemed to have predeceased the decedent if there is evidence the heir physically or financially abused the decedent under the criteria outlined in Probate Code section 259. If the court grants the petition, the heir would effectively be disinherited (though not necessarily fully).
Can an Administrator of an Estate Sell Property?
An administrator is generally allowed to sell estate property, but the process they must abide by depends on the level of authority they’ve been granted by the court.
For instance, an administrator with limited authority must obtain court approval before proceeding with a sale of real property. In contrast, an administrator with full authority can sell property without court approval, provided they serve the heirs with a notice of proposed action at least 15 days prior to finalizing the sale. If an heir objects to the proposed sale and presents valid reasons, the court will typically step in to make the final decision.
Regardless of their level of authority, administrators are expected to sell property for at least fair market value. Selling below that amount without valid justification — such as needing the proceeds from the sale to pay creditor claims — could be considered a breach of fiduciary duty.
If an heir would prefer to receive the property itself rather than a share of the sale proceeds, it’s important they communicate this preference to the administrator early in the probate process.
Does an Administrator of an Estate Get Paid?
An administrator of an estate — as well as their legal counsel — gets paid according to the statutory fee structure established by Probate Code section 10800, which is based on the total value of an estate.
The statutory fee structure for the administrator and their legal counsel is as follows:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- 0.5% of the next $15 million
- For estates over $25 million, reasonable fees are determined by the court
It’s important to understand that this fee structure applies only to ordinary services — that is, the standard tasks involved in administering an estate. If the administrator performs extraordinary services, such as managing the sale of real property or handling complex tax filings, they may be eligible to request additional compensation.
All fees — whether ordinary or extraordinary — must be approved by the court before they can be paid out. Being familiar with how California probate fees are calculated can help ensure the administrator doesn’t receive more compensation than the law allows.
Still have concerns about the administrator taking everything?
If you’re concerned that the administrator of an estate is overstepping their authority — or worse, taking everything — it’s important to not delay taking legal action.
At Keystone Law Group, our probate attorneys are well-versed in the laws governing intestate estates and the duties of administrators. We can help you determine whether wrongdoing has occurred and what legal remedies may be available to you to protect your inheritance.
Call us today to learn how we can help.
