Letters of administration and letters testamentary are specific types of legal documents that are used in the probate process, the court-based legal process in which property that a deceased person owned is transferred to others. The laws and procedures involved in the issuance of these letters of differ by the type of probate procedure involved. The following discussion discusses California’s procedures.
The Probate Process: Once a person dies with either a will or no will or trust, someone has to step in and manage all the property that person left behind. This person is generally known as the personal representative. In order for there to be a personal representative, except for modest estates, a probate court has to appoint someone to serve in the position. Once appointed, the court will issue letters of administration or letters testamentary to officially recognize the administrator.
Letters: In cases where there is a will in which an executor has been nominated by the person who created the will, the probate court will issue letters testatmentary to the executor. In cases where there is no will or the will does not nominate an executor, the probate court will issue letters testamentary. Once appointed and after the letters have been issued, an administrator or executor can begin managing the estate. For example, the administrator can present the letters of administration to the decedent’s bank and then use the funds in the estate accounts.
Wills: You cannot give someone letters of administration or letters testamentary, but you can make a choice about who receives them. If you want a specific person to administer your estate, you can nominate that person in your Last Will and Testament to be your executor. You can choose also provide alternates if the original executor is unwilling or unable to serve. However, except for modest estates, that person will not be empowered to act until appointed by the court and issues letters signed by a judge.
The probate process is time consuming, complex and complicated and most often far beyond the abilities of a lay person. If you will be serving as an executor or administrator of someone’s estate, you will be held to the very high standards of conduct applied to a fiduciary. Accordingly, to avoid possible liability for the failure to properly carry out the myriad of legal duties imposed upon an executor or administrator, it is prudent to retain a qualified and experienced probate attorney to assist you. The fees of the probate attorney are paid for by the decedent’s estate, not personally by the executor or administrator. The executor and adminstrator can also be compensated for their services from the decedent’s estate.
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