Heirs The Problem: No Heirs Means No Administration The Solution: Obtain the Nomination
By John Sellmann Hilbert, Esq.

The scenario:  As conservator at the time of death of the conservatee, you know of no heirs, but you wish to secure appointment as administrator of the probate.  What do you and your counsel do?

One option is to engage a company or individual specializing in finding missing heirs.  At the time you retain their services, request that they also attempt to obtain your nomination to serve as administrator for the heir(s).

My experience has been that, more often than not, heirs willingly, and, in fact, gladly execute the nomination since they are comfortable knowing that the conservator has prior experience managing the affairs of the decedent.  Such prior experience portends an efficient and, overridingly, a speedy probate administration, for the heirs' main concern is distribution of the estate as quickly as possible.

The California Probate Code sets forth a hierarchy of individuals entitled to letters of administration.  The list favors the family and heirs, with the decedent's surviving spouse in the first position, followed by the children, grandchildren, parents, sister/brother, niece/nephew, etc.  Significantly, one entitled to serve, but occupying one of the lowest positions, is the "conservator or guardian of the estate at the time of the decedent's death . . . . "  There are a few minor impediments for the conservator to overcome prior to securing the appointment, but, for good cause, the court will readily recognize the priority.

Importantly, the Probate Code provides that a person entitled to letters of administration may nominate, in a writing filed with the court, another competent person as administrator.  For example, a long lost son may nominate the conservator of his father's estate to serve as the administrator of the probate.

The hiring of the heir finder and the securing of the nomination(s) should be made prior to filing the petition for letters of administration.  Otherwise, the likelihood is the conservator's petition will not be granted for two reasons.  Occupying the position directly below that of the conservator in the hierarchical list is the County Public Administrator, commonly referred to as the "P.A."  Probate judges are much more sympathetic to the PA in the "missing heir" situation and will permit it to bump the conservator in priority.  The PA is, after all, charged by law to administer estates without known heirs and does not need nominations to commence administration.  Also, filing the petition with some heirs obviously missing or with the notation "heirs unknown" guarantees that other heir finders will commence a search without any forethought given whatsoever to benefiting the conservator.

Heir finders can be unscrupulous, and one must be particularly cautious when dealing with them.   At the outset of the relationship obtain from the heir finder the commitment to secure or, at a minimum, recommend the nomination in spite of the heir refusing to execute an assignment in its favor.  Also, again at the outset, speak with the heir hunter's local counsel and ask the question: Without the execution of an assignment, will its efforts continue for the benefit of the conservator?  Finally, certain ethical pitfalls must be avoided at all costs.

That said, obtaining the heirs' nominations means that the conservator can readily become the probate administrator.  Having represented heir finders for the past fifteen years, conservators and their counsel have called on my services many times.  Several situations involving conservators are set forth below:

1.  Counsel for the conservator requested that I secure an heir finder  to determine if, in fact, a first cousin was, as he maintained, the "sole" heir of a conservatee worth nearly $15,000,000.  Within a matter of days, the heir finder discovered that thirteen heirs existed and that the "first cousin" might not be an heir at all.  The heirs readily executed the nominations in favor of the conservator.

2.  I initiated a search to find the brother of a conservatee dying with an estate of $1,600,000.  The brothers had not spoken in over thirty years, and his name was unknown.  Yet, within a matter of hours, the heir finder located the brother--but the brother refused to execute an assignment in favor of the heir finder.  However, honoring a prior commitment to the conservator, the heir finder and I recommended the conservator's services to the brother, who shortly thereafter executed the nomination.

3.  The only son of the conservatee needed to be found as quickly as possible since the P.A. would file its petition for administration within days, thus trumping the petition of the conservator.  The search was particularly difficult, if not impossible, since the son and father had been estranged for over forty years, and, as an infant, the son had been adopted by his stepfather and assumed his stepfather's last name.  The mother had remarried and relocated to the east coast, and the son had no phone or address.  Utilizing resources not available to the average law practice and with a little luck, the heir finder found the son in a little over two weeks.  The conservator secured the nomination, and the son claimed his inheritance of over $800,000.