What are Letters Testamentary?
When you’re looking to probate a will in California, you must first file a petition to probate with request for letters testamentary with the Superior Court. Then, the court will issue letters testamentary after the initial probate hearing upon the approval of the order for probate. Keep in mind that letters testamentary are not written letters or correspondence but rather a legal document of court authority. Furthermore, they state that a person is the legal executor of an estate and has the ability to act as such.
As the personal representative of an estate, be sure to obtain a certified copy of the issued letters testamentary from the court. You will need this as well as a copy of the last will and testament and a legally binding death certificate to enter into real estate transactions on behalf of the estate and to manage debts and assets of the decedent.
Do All Estates Need Letters Testamentary?
Contrary to what some banks will assert, not all estates require letters testamentary.
Typically in California, estates only require probate when the deceased holds the title to assets valued over $166,250 in their name alone. Furthermore, the following assets do not require probate nor letters testamentary:
- Assets held in joint tenancy
- Assets held in “pay on death” or “in trust for” accounts
- Retirement accounts and life insurance proceeds which pass to living designated beneficiaries
- All assets titled in a trust
How are Letters Testamentary Different From Letters of Administration?
Under California law, letters of administration grant similar powers as letters testamentary. However, such powers derive from state law rather than a will. Therefore, a widow or heir can petition for probate with letters of administration if there is no will. This legal process is often referred to as Petition for Probate and Letters of Administration with Will Annexed. Ultimately, the key difference between letters testamentary and letters of administration is that the former requires a will and the latter applies to intestate succession, in which case there is no will.
After granting a petition, the court will issue letters of administration. Like letters testamentary, letters of administration authorize the legal administrator of an estate to act as such. Additionally, letters of administration give the administrator authority to manage the decedent’s estate under California’s laws of intestate succession. However, note that this authority has limitations and must be conducted under court supervision.
Before a widow or heir receives an order for letters of administration, they must usually post a bond in an amount based upon the value of the decedent’s assets. In some cases, all heirs may waive this bond requirement. Otherwise, the bond will compensate the decedent’s heirs in the event of mismanagement of the estate’s assets.
How to Obtain Letters Testamentary
In order to obtain letters testamentary or letters of administration in California, you need to draft and file a petition for probate requesting the letters. First, you should file California Probate Form DE150 with the probate petition and its various required attachments. However, completing this complicated petition incorrectly may result in a denied or delayed probate. Luckily, A People’s Choice can help you complete all the required forms and supporting documents to ensure completion and accuracy.
Alternatives to Letters Testamentary
If an estate is valued under $166,250, there are several alternative ways to legally distribute assets to beneficiaries or heirs.
First, if the estate has no real property and the assets total under $166,250, the administrator can prepare a probate affidavit form and present it to the agency holding the asset. This process easily transfers bank accounts, stocks, or other personal property with small balances in the decedent’s name.
Second, if the estate consists of real property and other assets with a cumulative total value under $55,425, the beneficiaries can file a court affidavit to request the distribution of property. However, note that all beneficiaries must file and sign this affidavit – NOT the representative.
Third, if the estate consists of real property and other assets with a total value under $166,250, the beneficiaries can file a small estate petition to request distribution of property. All beneficiaries must also sign and file this petition – NOT the representative.
Last, a spouse can file a spousal petition to transfer spousal or community property. This process works well if all the property in the estate is community property or designated to a spouse in a will. However, if the decedent dies intestate with some property left to other beneficiaries, a spousal petition cannot settle that part of the estate. Thus, depending on the value of the remaining property, the representative may still need to file probate.
Avoid Probate in California Altogether
The best way to avoid probate completely is with effective pre-death planning with a fully funded trust. A living trust allows a person to choose beneficiaries to receive their assets upon their death without a probate. In such case, there is no need for letters testamentary or letters of administration to distribute the assets of a trust.