California’s Superior Court, probate division, generally oversees the administration of estates of a certain size when assets do not pass directly to a surviving spouse. Although you may have been named as personal representative in a will or you are an heir of someone who dies without a will, you need the court's authority to settle an estate. The court will not seek you out to appoint you as personal representative, so you must petition for an order that gives you that authority; the order is referred to as “letters testamentary” or “letters of administration.”
A well-written will names not only a primary representative, or executor, but also a successor in the event the first-named representative is unable or unwilling to act. Whether you are the primary or successor personal representative, probate begins by filing a petition to probate the will and a petition for letters testamentary with the court. The court issues letters testamentary after the initial probate hearing, which reflects approval of your petition and authorizes you to proceed with probate.
As a personal representative, you will typically pay the debts and taxes assessed against the estate, as well as gather assets and disburse them according to the terms of the will. Banks, attorneys, financial institutions and others with whom you deal on behalf of the estate will likely require that you provide a copy of the letters testamentary as evidence of your authority to act.
Read More: How to Obtain Letters Testamentary
Letters of Administration
As widow or heir of someone who dies without a will, or intestate, in California, you may qualify to petition the court for letters of administration. Letters of administration grant many of the same powers as letters testamentary, but those powers come from state law rather than from a will. If your petition is granted, you will be required to distribute assets after all debts have been paid and claims settled in compliance with California’s laws of intestate succession. State laws establish who receives a decedent’s property when he dies without a will.
Requirements for Letters of Administration
Before letters are granted, the court will likely require you to post a bond in an amount based upon the value of the estate assets. This bond is required to protect the decedent’s heirs against possible mismanagement of the estate assets. Bond requirements are frequently waived by the will in testate proceedings. To qualify as personal representative for an intestate estate, you must be a U.S. resident and an adult who is competent to serve.; you may not be a convicted felon nor have outstanding warrants.
Letters of Administration with Will
In some instances, letters of administration are issued when there is a will. These letters are referred to as "letters of administration with will annexed" and are issued when a will has failed to name a personal representative or the named personal representative and all successors refuse or are unable to act. If you are a qualifying heir or beneficiary under California law, you may petition the court for these letters by presenting to the court the last will and testament reflecting the wishes of the decedent, along with your petition for letters of administration.
- Online California Legislative Information: Probate Code Section 8400-8405
- Online California Legislative Information: Probate Code Section 8520-8525
- Online California Legislative Information: Probate Code Section 8460-8469
- Online California Legislative Information: Probate Code Section 8480-8488
- Online California Legislative Information: Probate Code Section 8440-8442
- State Bar of California: Do I Need a Will?
Marie Murdock has been employed in the legal and title insurance industries for over 25 years. Murdock was first published in print in 1979 and has been writing online articles since mid-2010. Her articles have appeared on LegalZoom and various other websites.