Partner, TLD Law
Many times after someone has passed away, you will contact a bank or other financial institution to report the passing of your loved one. Your goal is to call, report the person’s passing and then close out the account either per the person’s wishes or transfer on death or payable on death beneficiary.
Maybe you are calling because your mom or dad died and your siblings put you in charge.
So you call the bank or annuity company or the life insurance company to report your parent’s passing. They take your call, tell you to fax or scan over the death certificate and then later you get a letter in the mail address to you or a Dear Sir/Madam.
The letter says something along these lines: Please accept our sincere condolences. We have reviewed our file and will need you to complete the enclosed application and provide letters testamentary in order to close out the account.
What does that mean?
If they are asking for letters testamentary, it means that the account has nowhere to go and they need you to open probate. There are no beneficiaries associated with the account. No forms were provided to list payable or transfer on death beneficiaries. It also means that the account was not vested, registered, held or owned by a trust or a surviving joint owner.
It means that this account has nowhere to go but to be included in a probate. Probate when opened – you get tickets – tickets are the court order and letters testamentary. Letters testamentary is the goal of opening probate. It means the judge has agreed that probate needs to opened, that the person petitioning the court has been appointed and grants access to the person hold letters testamentary to access the account to close or transfer or handle as needed. The account cannot be distributed until probate closes though.
In California, probate may not be required and letters testamentary are not needed if the account in question is less than $166,250 in the aggregate. There is a small affidavit procedure for allowing you (as the person handling the affairs of a deceased person) to collect by signing an affidavit under the penalty of perjury for small accounts of small value. California only wants you to open probate if the accounts in the aggregate will exceed $166,250. So if there is a small credit union account with $3,500 in it and another small financial account with $7,700 in it and neither account has a place to go – small estate affidavits can be prepared and submitted to grab these accounts. That is because the values of the two accounts in the aggregate does not exceed the $166,250 threshold. But say one account had $150,000 in it and another account had $30,000 in it – probate is required. A small estate affidavit cannot be used for either account. When you sign an small estate affidavit, you are swearing with a notary that probate is not required and the values of the accounts you are trying to collect are under the $166,250 threshold. For more information about California small estate affidavits, you can review California Probate Code Section 13100 et. seq. or call our office to assist.
Many times probate is indeed required and our office can help you open probate in California. We are very experienced in probate proceedings with 4 attorneys that handle probate as a part of their main practice and probate paralegals to also assist with these proceedings. TLD Law can make probate a bit easier to digest if you do need to proceed this way.
When you consult with us, our goal is to avoid probate where we can – we have other tools that we can use sometimes (spousal property petitions, affidavits for transfer of real property, Heggstad petitions, small estate affidavits and so on.) If we find there are no other alternatives we can make probate a bit easier for you with over 60 years of experience and offering services in our two flagship Southern California locations in Long Beach and Irvine.