California's Letters of Testamentary: A Comprehensive Guide

When a person passes away, their estate - which includes all their financial assets, real estate, and personal belongings - often needs to be managed and eventually distributed according to their will. This task falls to the executor or personal representative, who is typically named in the will.

However, banks, investment companies, and other financial institutions don't just take the executor's word for it.

They need official, legal proof that this person has the legal authority to access the deceased's accounts, sell their property, and distribute their assets. This is where the Letter of Testamentary comes in.

Issued by the Superior Court, after a petition for probate (DE-111) is made - the Letter of Testamentary serves as a formal, legal document (DE-150) that provides the executor or personal representative the legal authority to manage the deceased's estate.

Without this letter, the executor would likely find it impossible to fulfill their duties, as they wouldn't be able to access the deceased's assets or carry out the necessary financial transactions.

Letters of testamentary are typically required when a person has passed away and has left behind assets that need to be distributed as per their will.

An executor, named in the will, is responsible for carrying out these tasks.

The Letters Testamentary provide the executor with the authority to deal with the deceased's assets, pay off any debts, and distribute the remaining estate to the beneficiaries.

Some estates may not require letters of testamentary

Not all situations demand the issuance of these letters. In California, there is a concept known as a "small estate," which can simplify the process.

A small estate refers to:

an estate of a decedent who died Before April 1,2022 total value is $166,250 or less

OR

for an estate of a decedent who died AFTER April 1,2022 total value is $184,500

For such estates; a more straightforward "small estate probate procedure" is available, allowing estate property transfer - without the lengthy and expensive formal probate process.

This means; if a deceased person's estate falls under the definition of a 'small estate,' Letters Testamentary might not be necessary.

1. Gather important documents.Prior to the submission of the petition for letters of testamentary, you are required to gather all relevant probate documents needed. These are: Valid death certificate, and the final will.
2. Submit a Petition For Probate: The initial step involves submitting a Probate Petition to the Superior Court in the county where the deceased individual resided. This is where you'll need Form DE-111. Complete this form, attach the relevant documents and present it to the court.
3. Notify Interested Parties of the Petition: Once the petition has been filed, it's necessary to inform all relevant parties. This encompasses all heirs, beneficiaries, and creditors. This notice can be carried out through the newspaper in the county in which the deceased resided, and also mailing beneficiaries a notice of the death.
4. Participate in the Court Hearing: Depending on the court wait time, the probate hearing is usually within 6 weeks after the filing of the petition. If all the details are correct, appointment of the executor will be verified and the court will grant the Letters of Testamentary.
5. Manage the Estate: As the executor, your duty is to manage the estate - This involves settling any outstanding debts or taxes, managing and allocating the estate assets to beneficiaries as per the will's instructions.
6. Close the Estate: Once all debts and taxes are settled and the remaining assets have been allocated, you can submit a final account to the court and request the closure of the estate.

Costs To Consider

• In most counties, filing a petition for probate is subject to a $435 filing fee.
• Also, depending on the county in which the petition is filed, you may be subject to a surcharge. Counties like: Riverside, San Bernardino, San Francisco charge a $35-50 surcharge fee.
• Attorney fees: If you choose to go through probate with the help of a probate attorney, be prepared to pay a structured fee inline with probate code §10800 & 10810. You can use our attorney fee calculator: here, to estimate how much the attorney fee may be.

If the decedent died intestate, you cannot obtain a Letter of Testamentary.

However, the deceased’s next of kin can apply to receive a Letter of Administration, which is granted to a court-appointed estate administrator. This person fulfills the same role as an estate executor would.

Navigating the distinction between Letters Testamentary and Letters of Administration hinges primarily on if there is a will or not.

In the case that a will exists and has designated an executor, it is incumbent upon this person to apply for Letters Testamentary.

Conversely, should there be an absence of a will, or in the event that the chosen executor cannot fulfill their duties, court intervention becomes necessary.

The court will either designate an administrator or allow an eligible individual from a predefined priority list (usually a next of kin or close relative) to apply for the administrator role.

For those circumstances where a will does not exist, the individual who has been appointed or is applying for the administrator position will be responsible for obtaining Letters of Administration.

If you are an estate executor or a personal representative currently struggling to navigate the probate process - don’t hesitate to speak to our experienced experts at ClearEstate.

Reach out today for a free consultation - in this free consultation, our experts will guide you through the probate process and help clear things up for you in your time of need.

Do You Need a Letter of Testamentary With a Trust?

Contrary to common belief, the administration of a Trust does not necessitate the use of Letters of Testamentary. The beauty of a Trust is that it bypasses the probate process entirely, removing the need for court involvement. These are significant benefits of setting up a Trust.

Typically, when it comes to Trust administration, all that's required is the presentation of the trust instrument or trust certification when requested. This simplifies the process and further underscores the advantages of Trusts.

Do I Need a Lawyer to Get a Letter of Testamentary?

Technically, in California - you are not required to have an attorney at all during probate, unless the probate case is undergoing litigation.

However, seeking professional help can greatly reduce the problems that can come along with the intricacies of the probate process. Something as simple as a wrongly filled out DE-111 can prolong the process even further.