Sometimes when a California testator executes a will they nominate two or more people to serve as joint personal representatives of their probate estate. This is often done because a testator does not want one person making all of the decisions, or because a testator has multiple children that they cannot choose between.
What Are The Duties Of Joint Personal Representatives in California?
California Probate Code § 9630 sets forth the duties of joint personal representatives. These duties are specific to joint personal representatives in California, and are in addition to the duties of personal representatives in general. Section 9630 states:
(a) Subject to subdivisions (b), (c), and (d):
(1) Where there are two personal representatives, both must concur to exercise a power.
(2) Where there are more than two personal representatives, a majority must concur to exercise a power.
(b) If one of the joint personal representatives dies or is removed or resigns, the powers and duties continue in the remaining joint personal representatives as if they were the only personal representatives until further appointment is made by the court.
(c) Where joint personal representatives have been appointed and one or more are (1) absent from the state and unable to act, or (2) otherwise unable to act, or (3) legally disqualified from serving, the court may, by order made with or without notice, authorize the remaining joint personal representatives to act as to all matters embraced within its order.
(d) Where there are two or more personal representatives, any of them may:
(1) Oppose a petition made by one or more of the other personal representatives or by any other person.
(2) Petition the court for an order requiring the personal representatives to take a specific action for the benefit of the estate or directing the personal representatives not to take a specific action. If a procedure is provided by statute for a petition to authorize the specific action by the personal representatives, the petitioner shall file the petition under the provision relating to that procedure. Otherwise, the petitioner shall file the petition under Section 9611.
Therefore, joint personal representatives in California must agree to exercise a power (if there are two), or concur by majority to exercise a power (if there are more than two personal representatives). If joint personal representatives cannot agree or oppose each other in taking a certain action, they may petition the California probate court to stop the other personal representative from proceeding.
What Are The Liabilities of Joint Personal Representatives?
The California Probate Code also sets forth when a joint personal representative is liable for the actions of the other personal representative(s). Section 9631 states:
(a) Except as provided in subdivision (b), where there is more than one personal representative, one personal representative is not liable for a breach of fiduciary duty committed by another of the personal representatives.
(b) Where there is more than one personal representative, one personal representative is liable for a breach of fiduciary duty committed by another of the personal representatives under any of the following circumstances:
(1) Where the personal representative participates in a breach of fiduciary duty committed by the other personal representative.
(2) Where the personal representative improperly delegates the administration of the estate to the other personal representative.
(3) Where the personal representative approves, knowingly acquiesces in, or conceals a breach of fiduciary duty committed by the other personal representative.
(4) Where the personal representative’s negligence enables the other personal representative to commit a breach of fiduciary duty.
(5) Where the personal representative knows or has information from which the personal representative reasonably should have known of the breach of fiduciary duty by the other personal representative and fails to take reasonable steps to compel the other personal representative to redress the breach.
(c) The liability of a personal representative for a breach of fiduciary duty committed by another of the personal representatives that occurred before July 1, 1988, is governed by prior law and not by this section.
Therefore, a joint personal representative can be liable for breaches of fiduciary duty committed by the other personal representative in certain situations, such as when they participate in the breach, improperly delegate, or approve, consent, or knowingly conceal a breach. A joint personal representative in California can even be liable for breach if they should have known of the breach of fiduciary duty of the other personal representative.
What Fees Are Joint Personal Representatives Entitled To?
Joint personal representatives in California do not receive more compensation than a single personal representative. Instead, California Probate Code § 10805 provides:
If there are two or more personal representatives, the personal representative’s compensation shall be apportioned among the personal representatives by the court according to the services actually rendered by each personal representative or as agreed to by the personal representatives.
What Are Some Problems With Having Joint Personal Representatives?
Some common problems exist with having joint personal representatives in California.
The joint personal representatives have to agree before exercising their powers, or at least have majority consent. This means that joint personal representatives are required to work together. This can be difficult with personal representatives who simply do not get along.
From a practical standpoint, opening up and transacting on the bank account for the probate estate may require joint action for each transaction. Often times banks will require both signatures to conduct even the most mundane transactions.
In addition, having two personal representatives can cause a delay in the probate administration. If one personal representative always has to seek out the consent and approval from the other, the administration does not move as fast as if a single personal representative was making decisions.