Legal Question in Wills and Trusts in California

Re: Letter of Testimentary

If the bank accounts hold more than $100,000 and have no beneficiaries, then you will need to open probate in the superior court of the county where your father resided. The filing fee would depend on the county. Once you are appointed the Administrator, the court would issue Letters Testamentary, which you can use to marshall (get) the money into the Estate account. However, this is only the beginning. You will most likely need the assistance of an attorney to go through the entire probate process before the money can be distributed.

If you would like to discuss this matter further, you may contact me at [email protected].

Re: Letters Testamentary

If the total estate is less than $100,000, you can complete an affidavit under Probate Code section 13100 (form is included in the code) with a death certificate and have the funds released to you (and other heirs, if any, like other brothers and sisters).

If it is more than $100,000 total, you will indeed need to petition the probate court, in the county where he resided, for Letters Testamentary. You can access the accounts then, but will not be able to distribute the money to yourself (and any other heirs) until you get an order for distribution from the court at the close of the case (about 6-9 months after starting). In the meantime, you'll have to pay debts of the estate and look for all the assets. If probate is required, it's usually good to have an attorney to guide you through the often complicated and confusing process.

Re: Letter of Testimentary

Very sorry to hear your father passed away and now the bank is giving you such a hard time. They can be very cold.

It sounds like what they are asking you to do is start a Probate proceeding.

If your father's total gross estate was $100,000 or more, (this includes a house but not any liens, mortgages or other encumbrances), then the bank is correct, you do need to start a Probate. If not, then you do not need to and they just don't understand how everything works. It is not much of a surprise...we've had to deal with similar situations in the past.

We specialize in this area of law, wills, trusts, estate planning and probate so I firmly believe we can assist you.

If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided by LawGuru or through our firm�s website located at PasadenaEstatePlanning.com.

We also have a second site that provides a lot of infrmation about Probate and how to avoid it. It is located at No-Probate.com.

IMPORTANT:

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Re: Letter of Testimentary

It depends on the size of the estate. If it is under $100,000, you can obtain the assets with a small estate Affidavit (Probate Code Section 13100). If there is real property and/or more than $100,000 (not including POD or joint tenancy accounts) you will have to file a Petition for Probate of the estate, yes, in the county where your father lived, and you will be issued Letters of Administration (rather than Letters Testamentary, since there is not Will.) It would be best to retain an attorney to help you with this process, but if you want to try to do it on your own, consult a good reference for the layperson- I recommend Nolo Press "How to Probate an Estate" which has sample forms as well as instructions. Even if you don't hire are lawyer, there are fees for filing the petition, publication, probate referee (appraiser), etc. Probate lawyers are paid out of the proceeds of the estate, when the estate is distributed, so you don't have to pay upfront.