When probating a Will in California, the prospective executor will need to request a letter of testamentary. Here’s everything you need to know about a letter of testamentary in California.
A letter of testamentary is a court order that grants the executor of a Will the authority to settle the estate during a probate case. A letter of testamentary must be petitioned for by the person who wishes to be executor, with the petition usually costing $435. If there is no will, the person who wishes to become the administrator must petition for a letter of administration instead.
What is a Letter of Testamentary?
When an individual dies, their accumulated property (referred to as their estate) must be transferred to those who have the legal right to it. This is generally spelled out in the individual’s Will. When the estate is worth at least $166,250, it must be probated, which means that the process of paying the decedent’s debts and transferring their property to the new rightful owner(s) must be done through a specific process under court supervision. One individual will be appointed by the court and will have the authority to settle the estate and make all necessary transfers.
Related: California Probate: What You Need to Know
If the decedent has a Will, this person is referred to as the executor. The Will will indicate who the decedent wanted to be selected as executor. In order to be appointed, the prospective executor must file a petition for probate and a letter of testamentary. This letter of testamentary is a court order that grants the authority to the executor to settle the estate.
How Do I Get a Letter of Testamentary in California?
In order to get a letter of testamentary and therefore become the executor of the Will when an estate is being probated, a person must file a petition (form DE-111) with the superior court in the county where the decedent lived. This petition has an option to “petition for probate of will and letters testamentary”, which must be indicated and filled out accordingly. In order to receive the letter of testamentary, a copy of the Will must be provided alongside any other requested forms as well as information identifying the prospective executor.
How Do You Get a Letter of Testamentary Without a Will?
If there is no Will, then one cannot receive a letter of testamentary. This is because a letter of testamentary gives authority to the executor of the Will, but there is no executor if there is no Will. There is, however, a very similar court order known as a letter of administration. An administrator is a person appointed by the court to do the work of settling someone’s estate after their death if they did not create a Will. The administrator will need the letter of administration in order to be granted authority to settle the estate. In order to do so, they must also file a form DE-111, instead indicating that it is a petition for a letter of administration rather than a petition for probate of a will and letters testamentary.
Related Costs
According to California’s government website, the petition for probate costs $435 in order to file in most counties. In San Francisco, San Bernardino, and Riverside counties the fees will vary due to a surcharge.
FAQs
Do I need a letter of testamentary if my loved one’s estate is being probated?
Whoever is petitioning to become the executor must petition for the letter of testamentary if the Will is being probated. The letter of testamentary gives the executor the power to settle the estate.
How do I get a letter of testamentary?
You must file a Form DE-111, indicating that you are petitioning for the probate of a Will and a letter of testamentary. You will also have to provide a copy of the Will, identification, and any other documents the court requests.
How much does a letter of testamentary cost?
In most California counties, the cost of the petition is $435.
Can I get a letter of testamentary if there is no Will?
No, but whoever is petitioning to be the administrator will need to petition for a letter of administration instead.
Related: Intestate Succession in California: The Basics
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