Letters Testamentary, or the letter of administration form, also known as Judicial Council of California Form DE-150, is what the Santa Clara County Probate Court issues at the time of, or after the hearing petitioning the court for an order for probate. The application for letters of administration is Form DE-150 submitted with the petition and order for probate at the time the petition is filed with the court.
The letters get signed by the personal representative affirming they will perform their duties according to law. The Letters may be issued to an institutional fiduciary, an individual, or Public Administrator. Affirmation is not required by the Public Administrator.
The Letters are proof of authority granted by the court for the appointed person to act on behalf of the estate.
There are four types of Letters in Probate
- Letter of Testamentary California. Issued when the person died with a Will and the person named as the Executor in the will is the person who petitions the court.
- Letters of Administration California. Issued when a person died without a Will to the person who petitions the court.
- Letters Special Administration. These are issued without a hearing, are temporary, and are issued for a specific purpose.
- Letters of Administration with Will Annexed. Issued if the person did not name an executor in their Will. It may also be used if a person named in the Will does not want to be the executor or if the named person had died.
Powers Granted in Letters Testamentary
The Letters show the type of powers granted to the estate representative.
- Acting with full authority under IAEA.
- With limited authority (no authority without court supervision, to (1) sell or exchange real property or (2) grant an option to purchase real property or (3) borrow money with the loan secured by an encumbrance upon real property).
- Not authorized to take possession of money or other property without a specific court order
Letters are especially important. Without them, one cannot act on behalf of a probate estate. A certified copy of the Letters is required by most financial and lending institutions and by the title company. A photocopy of certified letters will not work. The Letters must be original certified by the court.
Opening Escrow to Sell a Probate Home or a Home in a Trust Estate.
In 20 years in the real estate business, we have only worked with one client whose attorney recorded the necessary documents to update the title to the trusts or probate estate. We were impressed at the level of efficiency!
From county to county throughout the state, the customary practice regarding who opens escrow varies. In Santa Clara County, the county we serve, it is customary for the listing agent hired by the seller to open escrow. Once escrow is opened, a preliminary title report is delivered to the listing agent. Kathleen Daniels, Probate Realtor always examines the preliminary title report.
Deceased people cannot sell anything. When someone dies with a will or without a will, the title company needs a certified copy of the Letters and a certified copy of the death certificate. Those documents allow the title company to transfer the title from the name of the person on the title to the estate.
An example for probate without a will, when the title gets updated, the title typically reads something like this:
The heirs or devisees of [name of deceased], deceased, their interest being subject to the administration of the estate of the said decedent in Santa Clara County, Probate Case No. 19PRXXXXXXXX, wherein [name of appointed person] is the appointed administrator of the said estate with full authority under the Independent Administration of Estates Act. The XXX in the case number represents what would be actual numbers. The 19 in front of the PR represents the year the case was filed.
For a trust, as an example, the title typically reads something like this:
Joe Smith, Successor Trustee of the Smith Family Trust created on October 17, 2011.
One of our many best practices is to check the court records.
In addition to examining the preliminary title report, another best practice is to check the court records.
Recently, we picked up a certified copy of the Letters and Death Certificate from our client’s attorney’s office and delivered them to the title company to update the title to the probate estate.
While setting up our file, and checking the court records, when we entered the case number shown on the Letters, the case number was not found. We then entered the name of the deceased person to cross-check our search with the court. The case appeared in the results. One of the numbers in the case number was off by one number. This was most likely a typo, but we needed to verify it with our client and the attorney for the estate.
Our client confirmed that all of the other court documents had the correct case number. It was only the Letters Testamentary that had the incorrect case number.
We called the law firm representing the estate and let them know of the issue.
We suggested they reach out to the court and ask. What was the court’s response?
Return all certified copies of the Letters testamentary to the court for destruction. The law firm had to create a new form with the correct case number, Federal Express it to the out-of-state client for a wet signature, and return it back to the law firm for filing with the court and get certified copies.
We requested the title company federal express the original we delivered to their office to the law firm. Our request was granted, and the document was sent to the law firm for overnight delivery.
How might this impact the sale of the probate home?
With the Santa Clara County Probate Court backed up as they are, there is no telling how long it will take to get the corrected and certified Letters returned and then sent to the title company to update the title. In this case, it took one month.
Every situation is different in terms of the timing of events. If the probate home was already listed for sale, and an offer accepted, it could have delayed the close of escrow.
Even worse, we do not want to think about the impact if the home was sold and closed with the incorrect case number. We all know where the devil resides … in the details!
Santa Clara County Probate Real Estate Services
One reason we share stories about what we experience is to illustrate that real estate is not one size fits all and that real estate agents are not all the same, or shall we say, created equal. Experience & Qualifications make a difference. The agent’s dedication to service and ongoing training also makes a difference. Kathleen Daniels is a member of the Silicon Valley Bar Association and attends classes hosted by attorneys, and Zoom meetings hosted by the Santa Clara County probate judges. While she is not an attorney, Kathleen knows knowledge is powerful when used wisely. She does not give legal advice however she frequently recommends attorneys to her clients based on their specialized needs.
Some clients need a real estate attorney to manage an eviction, others need an attorney to assist with trust administration, probate or trust litigation, conservatorships, probate estates, and more. She is networked with local attorneys who may also make recommendations to other attorneys if they are not able to take on a case.
Clients may need contractor recommendations if they want to make improvements to a home before selling. Kathleen’s resource tool kit is expansive and it is reserved exclusively for her clients.
If you are a representative of a probate estate filed in the Santa Clara County Probate Court, and you have been issued Letters Testamentary or another form of Letters, and need to sell real property, contact Kathleen Daniels for a consultation.