Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at or contact my office at 562.424.8619.

Monday, May 31, 2010

Priority of Appointment

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Priority of Appointment

I LIKE THIS DECISION–not so much because of the legal position it stands for, but because it relates to mixed martial arts.  What, you say, could a case dealing with priority of appointment as personal representative of an estate have to do with Ultimate Fights and Mixed Martial Arts?

For forty-five years I have been involved with wrestling, karate and ju-jitsu.  I teach karate when I am not practicing law.  Still, what does that have to do with Estate of Charles David Lewis, Jr. Williams, as Public Administrator v. Diane Larson (2010) 2010 DJDAR 6732?

There was a fight, but that is not the answer.  Lewis died and left two minor children as his sole heirs.  The two minors reside with their mother, Larson, in Illinois. Public Administrator and Larson filed competing Petitions to Administer the Estate.

Probate Code §8461 sets forth the priority, in order, for appointment: (b) lists “children” whereas (p) is Public Administrator.  Thus, decedent’s children are second in priority and the Public Administrator is 16th.  Issue solved, right?  Well, don’t answer too quickly.  The children are minors; so we go to §8464, which states “If a person otherwise entitled to appointment as administrator is a person under the age of majority . . ., the court in its discretion may appoint the guardian . . .or another person entitled to appointment.”

Public Administrator argued that Larson was not the Guardian; and that they were in Illinois; as “another person entitled to appointment” he was in the best position to serve; and, given the choice the code gives, should be appointed.  Public Administrator was appointed Special Administrator.

Larson argued that she was the children’s natural parent, and because of that was their guardian.

The Appellate Court traced the history of the code section to Code of Civil Procedure §1368 and references Estate of Turner (1904) 143 Cal 438.  The code section read essentially the same and competing petitions were filed by decedent’s brother and by the guardian of the decedent’s minor children.

The issue was whether competing Petitions by persons of equal priority required appointment by one who was not the minor.  That court said no.  The court both there and in the current situation dealt with the language of the code and whether the “or any other person entitled to letters” referred to someone in the same class of the minors or to someone in inferior classes who were entitled to appointment “in the absence of others having superior rights.”

The court rejected the latter argument.  A person is never entitled to appointment over a person with priority unless that person is disqualified.  The legislature did not hardly intend to qualify a minor by appointment of a guardian just to allow them to compete with a person in a subordinate class.

The court in Turner further set forth if more than one person in a class petition the court can name them to serve together, or, if they cannot “agree, the court may appoint the public administrator or a disinterested person in the same or the next lower class of priority as the persons who are unable to agree.”

In Estate of Waltz (1966) 244 Cal.App.2d 217, the court followed Turner saying, “the guardian is to be considered a member of the class to which his ward belongs to and ahead of all lower classes, and the court has no discretion to appoint a person of an inferior class in preference to the guardian.”

Public Administrator attempted to distinguish the cases due to the word “must” that the appointment “must be granted to his or her guardian, or any other person . . . .”  The court said this was an “insignificant” distinction.

The court ruled that absent a finding that Larson was incompetent to serve, the court “lacked statutory authority to appoint the Public Administrator, instead of Larson” and thereby abused its discretion under §8464.

So, there you go.   So, did you figure out what that had to do with Mixed Martial Arts?  Decedent Lewis had an estate valued in excess of $10 million and owned a 28% interest in “Tapout LLC,” a clothing and marketing company associated with Mixed Martial Arts.  Tapout or “to tapout” is to pat your opponent or the mat to express that you give-up.

You learn something new every day, right?  But, I don’t suggest that the next time you are losing on a motion that you pat the table twice signifying your surrender in order to avoid further damage.

                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2010 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
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