In order to settle a California estate, the person named as the personal representative in the will, or an heir in the event someone dies without a will, must get the court’s authority to do so. The court will not contact the personal representative or the heir of the estate directly. Instead, the personal representative or heir must petition the court themselves for an order that gives them the authority to settle the estate. This order is commonly called “Letters Testamentary” or “Letters Administration.” So what are Letters Testamentary and how do you get Letters? Read on to learn more about Letters Testamentary and how to obtain an order to administer your loved one’s estate.
What are Letters Testamentary Compared to Letters of Administration?
A question often asked is, what’s the difference between Letters Testamentary and Letters of Administration. A Petition to Probate with request for Letters Testamentary is filed with the Superior Court to probate a will in California. Letters Testamentary are not actually written letters or correspondence but rather a legal document of court authority that states a person is the legal executor of an estate and has the ability to act as such. The court will issue Letters Testamentary after the initial probate hearing upon the Order for Probate being approved. The issuance of Letters is just one of a series of steps in the California probate process.
The personal representative of an estate or heir will need a certified copy of the issued Letters Testamentary (and sometimes 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.
Under California law, Letters of Administration grant similar powers as Letters Testamentary, but such powers derive from state law rather than a will. A widow or heir as described above can petition for Probate with Letters of Administration if there is no will. If the petition is granted, the court will issue Letters of Administration which, like Letters of Testamentary, confirm authority that a person is the legal administrator of an estate and has the ability to act as such. These Letters of Administration in probate give authority to the administrator to manage the decedent’s estate ( with limitations and under court supervision) under California’s laws of intestate succession.
In the event the will fails to name a personal representative, an heir under California law can petition the court for Letters by presenting the last will and testament along with a probate Petition for Letters Administration. This legal process is often referred to as “Petition for Probate and Letters of Administration with Will Annexed.” The key difference between Letters Testamentary and Letters of Administration is that the former requires a will and the later applies to intestate succession.
Before a widow or heir receives an order for Letters of Administration, the court will usually require them to post a bond in an amount based upon the value of the decedent’s assets unless all heirs waive the bond requirement. The bond will compensate the decedent’s heirs in the event the estate’s assets are mismanaged.
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 that Letters be issued. Filing California Probate Form DE150 with the Probate Petition and its various required attachments will begin the process. These can be complicated forms and, if prepared incorrectly, your Petition can be denied or delayed. At A People’s Choice, we can help you complete all the required forms and supporting documents to file your Petition for Letters Testamentary or Letters of Administration.
Do All Estates Need Letters Testamentary?
Contrary to what some banks will infer, all estates do not need Letters Testamentary. Typically in California, probate is only required when the deceased holds the title to assets in their name alone which has a cumulative value of $150,000. The following assets do not need to go through probate and thus do not require Letters Testamentary to be administered.
1. Assets held in joint tenancy
2. Assets held in “pay on death” or “in trust for” accounts
3. Retirement accounts and life insurance proceeds which pass to living designated beneficiaries
4. All assets titled in a trust
Alternatives to Letters Testamentary to Transfer Estate Assets
If an estate is valued under $150,000, there are several alternative ways for a representative to legally distribute assets to beneficiaries or heirs.
If the estate has no real property and the assets are under $150,000, the administrator can prepare an Affidavit form and present it to the agency holding the asset. This process works to easily transfer bank accounts, stock or other personal property with small balances in the name of the decedent.
If the estate consists of real property as well as other assets with a cumulative total value under $50,000, the beneficiaries can file a court Affidavit to request the property be distributed. It is important to note that this process must be filed and signed by all beneficiaries, NOT the representative.
If the estate consists of real property and other assets with a total value under $150,000, the beneficiaries can file a Small Estate Petition to request the property be distributed. It is important to note that this process must also be filed and signed by all beneficiaries, NOT the representative.
Lastly, a spouse can file a spousal petition to transfer spousal or community property to the surviving spouse. This process works well if all the property in the estate is community property or designated to go to a spouse by will. However, if the decedent dies intestate and there is some property that needs to be distributed to other beneficiaries, a spousal petition does nothing to settle that part of the estate that goes to the other heirs. Depending on the value of the property to be distributed to other heirs, a full probate or a small estate probate may also need to be filed to distribute those remaining assets.
The best way to avoid probate completely is with effective pre-death planning. Probating an estate can be completely avoided if a decedent makes proper pre-death plans for their estate with a fully funded trust. Having a living trust will allow an estate’s assets to avoid the probate process altogether. A living trust allows a person to choose beneficiaries to receive their assets upon their death without the estate having to go through the probate process. There is no need for Letters Testamentary or Letters of Administration to distribute the assets of a trust.
If you need help completing a probate Petition for Letters Testamentary or Letters of Administration, contact A People’s Choice for help. We provide probate legal document preparation services throughout California and are ready to offer you low-cost professional assistance to settle the estate.