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Losing a loved one is a traumatic experience. Being named as their estate executor can make a stressful time even worse. Being chosen to act as an executor is a great honor, since it shows the deceased had utmost trust in you. But the legal part can be challenging to navigate if you're not an attorney.
Learning about the various terms and expectations associated with the role of an executor and how probate works are essential, as they may not mean much to people unfamiliar with this aspect of the law.
One such example of an unfamiliar term an executor will encounter is a "Letter of Testamentary."
If you are named an estate executor in California, you will need a Letter of Testamentary to settle the estate during probate. The letter grants you full legal authority to distribute and manage the deceased’s assets according to the deceased's will.
Along with a valid death certificate and the deceased’s will, Letters of Testamentary are necessary documents you will require to dispose of assets, settle debts and handle all other financial concerns associated with the estate.
Oftentimes, banks and other financial institutions won’t even consider letting you access the deceased’s assets unless you have a Letter of Testamentary identifying you as the official estate executor.
If someone dies and leaves a will, there is a legal obligation for an executor or an administrator to manage and distribute the deceased's assets. In California, if the estate's total value is less than $184,500, it’s considered a small estate and its assets can be distributed informally, without the supervision of a court, via a small estate affidavit.
However, should the estate's value exceed this amount, the disposal of assets must be done under court supervision through a specific process known as probate. There are also some circumstances where probate is required even if the estate is valued at or less than $184,500, such as if there is outstanding debt or the will is challenged. If some died without a will, also known as dying intestate, their estate usually also must go through probate.
To become the executor of a will and obtain a Letter of Testamentary in California, you must file a form DE-111 (also known as a petition) with the superior court in the county where the deceased died. On the form is an option to "petition for probate of will and letters testamentary." You need to indicate and fill out this section accordingly.
You will also need to provide a copy of the will and some identification, as well as any other relevant paperwork. In most counties, this is subject to a $435 fee. However, in San Francisco, San Bernardino, and Riverside counties, there is also a surcharge.
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.
As we have already noted, Letters of Testamentary are given to the executor of an estate who has been named in the deceased's will. However, if there is no will or the executor can't fulfill their duties for any reason, the court will appoint an administrator to oversee the disbursal of the estate.
The administrator is then issued Letters of Administration. Letters of Administration give the same authority to an administrator as Letters of Testamentary provide to an executor.
In order to obtain a Letter of Administration, the administrator must go through the same process as an executor and file form DE-111 in the county where the deceased’s lived at the time of their death.
If you are an estate executor or an administrator 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 and find out how we can help.
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