| Alan R. Horvath, Attorney at Law |
Estate Litigation - Do you Have a Claim?
Discretion
Discretion, is often granted explicitly or implicitly to an administrator by the will or trust. It is important to understand both
the breadth and limitations of this term. First, the purpose of discretion is to allow the administrator to proceed in the face
of divergent interests of the beneficiaries that might make it impossible to ever get full agreement on anything. For
example, if an administrator is instructed to sell a particular property, the sale price will normally be up to him. If you are
willing to overbid the administrators price, you would have a strong case to have your offer accepted, since it would
apparently be a disservice to the beneficiaries as a whole if it were not. However, if you just think the administrator should
be able to get a better price than he did, you probably don’t have much of a case.
On the other hand, discretion, even absolute discretion, NEVER authorizes an administrator to take an action that is
contrary to the intent of the document as a whole, or that benefits the administrator at the expense of any beneficiary.
the breadth and limitations of this term. First, the purpose of discretion is to allow the administrator to proceed in the face
of divergent interests of the beneficiaries that might make it impossible to ever get full agreement on anything. For
example, if an administrator is instructed to sell a particular property, the sale price will normally be up to him. If you are
willing to overbid the administrators price, you would have a strong case to have your offer accepted, since it would
apparently be a disservice to the beneficiaries as a whole if it were not. However, if you just think the administrator should
be able to get a better price than he did, you probably don’t have much of a case.
On the other hand, discretion, even absolute discretion, NEVER authorizes an administrator to take an action that is
contrary to the intent of the document as a whole, or that benefits the administrator at the expense of any beneficiary.
P.O. Box 81
596 Mountain Ranch Rd.
San Andreas, CA 95249
596 Mountain Ranch Rd.
San Andreas, CA 95249
| Phone: 209 754-5291 Fax: 209 754-5293 |
| ahorvathlaw@sbcglobal.net |
| Serving Calaveras, Amador, Tuolumne, and San Joaquin counties, California |
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