Legal Question in Wills and Trusts in California

''Letters Testamentary''

My uncle recently passed away. I am sole beneficiary of his irrevocable trust. My sister is the trustor. His employer had a ''Death Benefit Account'', paid by them, owned by them until time of death. They (employer) are requesting ''Letters of Testamentary'', along w/death certificate in order to release funds. Stating, ''Even though all assets pass to me, benefit was their property prior death and could not have been transferred to trust while living''. What exactly are ''Letters Testamentary'' and how do I go about obtaining? Is the Trust document sufficient? Will this create a potential for Probate? If there were accounts, assets not transferred prior to death, is probate neccesary? There are no other heirs, he was never married.

Asked on 5/21/04, 6:27 pm

4 Answers from Attorneys

Scott Linden Scott H. Linden, Esq.

Re: ''Letters Testamentary''

Letters Testamentary are standard issued letters at the beginning of Probate. Under a Trust, there should be no probate.

Additionally, the Death Benefit Account should have had a named beneficairy. If not, then it would go to your uncle's estate. As long as he has a general "catch all" for all unassigned assets to be assigned to the trust, the benefits should pass under the trust. (This is standard in one of our firm's trusts but not in all.)

If there is no provision such as this, then the amount is subject to a probate if over $100,000.

The most important issue in your situation is the terms of the trust and the terms and beneficiary designation on the Death Benefit Account.

If you would like our firm to review your documentation, please feel free to contact me at (626) 578-0708 or online at

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Answered on 5/24/04, 3:22 pm

Michael Olden Law Offices of Michael A. Olden

Re: ''Letters Testamentary''

Letters testamentary are granted one of probate is started. Since there is no probate here a copy of the trust agreement or the relevant part showing that you are in the beneficiary should be sufficient. Also, more likely than not there should be a designation of beneficiary form. Their alternatives since you don't have to start of probate in the situation but just make sure that you understand what the alternatives are so that you will get them for the best advice is hire an attorney whose expertise in probate and let him deal with the employer for you what should take of very little time and be well worth the dollar spent.

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Answered on 5/22/04, 10:23 am
Kai Wessels, Esq. Wessels Law Firm

Re: ''Letters Testamentary''

Letters Testamentary is what the executor receives when probate is opened to probate a will. In California, this may be required if the account you mentioned has over $100,000 (or the non-trust estate has more than $100,000 and no land), and no beneficiaries are designated on that account.

In short, the employer is requiring you to probate your uncle' will. Whether the employer is correct is another story, and is best answered by an attorney retained by you. I suggest you contact an attorney in your area. If you would like to call me, my number is (408) 268-2580.


Kai H. Wessels, Esq.

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Answered on 5/21/04, 6:45 pm
Ken Koenen Koenen & Tokunaga, P.C.

Re: ''Letters Testamentary''

If the amount involved was over $100,000, there may be a need for a probate. If less, then there probably is no need for a probate, and the transfer can be done with an affidavit.

Sometimes a death benefit account shows a beneficiary. That might also determine if a probate is needed or not.

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Answered on 5/21/04, 6:55 pm

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