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In re Estate of Lewis

May 6, 2010


Appeal from an order of the Superior Court of Orange County, Gerald G. Johnston, Judge. Reversed. (Super. Ct. No. 30-2009-00256639).

The opinion of the court was delivered by: Ikola, J.



Diane Larson appeals from the court‟s order appointing the public administrator to administer the estate of the deceased father of Larson‟s two children, who are decedent‟s sole heirs. We reverse because Probate Code section 8464 did not authorize the court to make such an appointment.*fn1


On April 1, 2009, Larson petitioned to administer decedent‟s estate. The petition stated decedent died intestate in Orange County, California on March 11, and was survived by two children who lived with Larson in Illinois.

On April 7, the public administrator petitioned to administer decedent‟s estate, claiming Larson was "not the court-appointed guardian of the estates of the minors" and, even if she were, the court had discretion to appoint "another person entitled to appointment" as administrator. The public administrator stated he was "best suited and qualified . . . to act as administrator" due to the "potential size and complexity of this estate."

Also on April 7, the public administrator petitioned for letters of special administration. His petition stated decedent was believed to own a 28 percent interest in "TapouT LLC," a successful clothing and marketing company "associated with the sports of mixed-martial arts and ultimate fighting." Media reports suggested the value of that interest exceeded $10 million. Decedent was also thought to have substantial bank accounts, securities, "valuable automobiles (including a Porsche Turbo S and a Bentley) and potentially valuable intellectual property rights."

The next day, Larson petitioned for letters of special administration. Larson stated the minors were decedent‟s sole heirs and she was their biological mother and legal guardian. Larson submitted a brief stating that under Illinois law, she could not be appointed the minors‟ guardian since she is their living, custodial parent currently caring for them. The court responded to the competing petitions by appointing the public administrator as the special administrator of the estate, and later extended the letters of special administration through May 13. Prior to the May 13 hearing on the petitions, Larson reported that an Illinois court had appointed her the legal guardian of the person and estate of each minor, and that both minors had nominated her to act as administrator of their father‟s estate.

At the May 13 hearing, the public administrator argued he was "better suited to handle" the large, "complex" estate. Shortly before his death, decedent had stated his net worth to be "15 million dollars, and his annual income [to be] 1.5 million dollars." The estate required "a lot of leg work to track down the assets," such as taking custody of the cars. The public administrator had "three attorneys assigned to this case," and "a team of investigators and professional fiduciaries . . . ." The public administrator was local, whereas Larson lived in Illinois. The public administrator advised the court that section 8464 gave the court the discretion to appoint as the estate‟s administrator either the minors‟ guardian or "another person entitled to appointment."

Larson argued for appointment as the estate‟s administrator because she is the minors‟ guardian. She asserted there was no conflict between the children and her. Larson proposed that she be bonded in the amount of $750,000, arguing such sum was reasonable because the cars were "heavily encumbered." The court asked why Larson initially sought a bond of only $10,000. Larson replied that, at that time, she "had no idea what the estate was," but knew of her duty to report any additional assets marshaled. She argued she was qualified, is bondable, and had competent experienced counsel; moreover, the "two sole heirs want their mother to take care of it." She asked the court, in exercising its discretion, to "consider what would best benefit the children."

A potential creditor argued in favor of the public administrator administering the estate and its litigation with her. She stated the previous "$10,000 in assets reported [by Larson had seemed] to be fraudulent on its face." She stated she "would prefer someone who is appropriately bonded, who is local, and who can quickly get a hold of these assets and make the most out of them so that creditors like [her], who will have very sizeable claims against the estate, can ultimately be paid."

The court took the matter under submission. After reviewing the moving and opposing papers, the court approved the public administrator‟s petition, appointed him as the estate‟s ...

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