Rule 56 When Appropriate

COMMENTARY:

Many practitioners are uncertain of the proper use of a special administration, and some have, once a special administration is established, attempted to run a complete probate without having a personal representative appointed. This rule provides guidance as to the appropriate situations in which a special administrator should be appointed.

Paragraphs (a)-(d) of this Rule 56 describe the most common situations giving rise to the appointment of a special administrator. Paragraph (a) allows the appointment of a special administrator to track down assets, since many times financial institutions are reluctant to release information about a deceased's assets except to a court-appointed official. Paragraph (b) covers the situation where a lawsuit was threatened or pending against the defendant, but in settlement no assets will be paid to the probate estate, and therefore the special administrator is only required for purposes of signing documents (after court approval) and binding the deceased's estate; it does not allow a Special Administrator to collect no-fault benefits where no probate assets exists. Paragraph (b) also covers the situation of a deceased whose signature is required to sign a mortgage release or deed in satisfaction of agreement of sale or similar equitable document. Paragraph (c) covers the situation where a civil action is filed by or on behalf of the estate or the heirs or a suit is filed against the deceased or his or her estate. In most instances, informal probate can be opened rapidly enough that special administration should be unnecessary. If, however, the nominated personal representative is not a close family member, informal probate may take too long if the statute of limitations on the claim is about to expire or a response or objection must be filed. In those situations, appointment of a special administrator is appropriate, but a probate should be opened as soon as possible, and so the time allowed for special administration and the power of the special administrator are limited. Paragraph (d) covers the situation where there are probate assets and a personal representative's appointment is to be sought, but the estate will be prejudiced if no one is authorized to act on behalf of the estate in the meantime. Examples of this situation would be to track down a will, identify heirs or beneficiaries, sign tax returns on behalf of the deceased or estate, and many others.

Paragraphs (e) and (f) address the need for a special administrator when the regular probate proceeding has been commenced. Under paragraph (e), a special administrator may be appointed where a will contest or objections to the appointment of a specific individual as personal representative have been filed; rather thanhold up administration of the estate pending resolution of the contested matter, a special administrator can be appointed with all powers of a personal representative except for the power of distribution.

Paragraph (f) clarifies that a special administrator may be appointed even though a personal representative has been appointed and is acting where, for a limited period or with respect to a specific issue, the personal representative cannot or should not act. For example, if the personal representative has filed a creditor's claim against the estate, a special administrator may be appointed for the sole purpose of evaluating, allowing or disallowing, and defending the claim, while the personal representative can continue to serve on other issues. Another circumstance where paragraph (f) might apply is where the personal representative is physically incapacitated temporarily (such as by hospitalization), but will be able to resume his or her duties in the future.