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Biddle Law Estate Planning Blog

Monday, June 12, 2017

Probating a Will: A Primer on Letters Testamentary

How does a personal representative initiate a probate proceeding in California?

If you have been named as a personal representative in a will, you will be responsible for a number of important duties in carrying out the instructions of the deceased. In short, it is necessary to

gather the estate property and transfer it to the beneficiaries through a court-supervised proceeding known as probate.

In order to start the process, you must first obtain Letters Testamentary from the Probate Court in the county in which the deceased person lived. This basically requires submitting the will, the death certificate, and completing a short application which includes a sworn statement that you have been named as the personal representative in the will. The application may also require providing an estimate of the estate's property and debts.

The probate court will conduct a hearing in order to verify that you have been named as personal representative and are qualified to act in that capacity. This simply requires being a mentally competent adult who does not have a felony criminal record. Once the court approves you as the personal representative, the Letters Testamentary will be issued, and the probate will be officially opened.

As the personal representative, you can then begin collecting the assets, have any necessary appraisals done and pay final debts of the decedent. In some cases, the decedent's assets may be held by another person or an institution such as a bank. Since these institutions may require a document for their records, it is necessary to obtain multiple certified copies of the Letters.

What are Letters of Administration?

When a person dies without a will in place (or "intestate"), it is necessary for an heir of the decedent, particularly a legal relative or close associate, to petition the Probate Court for Letters of Administration. Here, the court will conduct a hearing and appoint this person to act as the estate administrator. The court will issue the Letters and open the probate proceeding. The role of the administrator is similar to that of a personal representative. He or she must identify potential heirs, pay estate debts, and manage and distribute the estate property according to California's intestacy laws.

The Takeaway

In sum, Letters Testamentary allow you to carry out your duties as the personal representative and transfer property to the beneficiaries according to the instructions of the will. If you are thinking about creating a will, it is important to name a trusted person to act as your personal representative. Similarly, if you have been named as a personal representative, you have a legal obligation to faithfully conduct your duties and carry out the decedent's wishes. When it comes to drafting a will or obtaining Letters Testamentary, you are well advised to seek the advice and counsel of an experienced estate planning attorney.

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