Letters of Administration vs. Letters Testamentary in California

The two terms confuse people because they describe the same thing with a different label. The label follows one fact: whether the person who died left a will that names someone to run the estate. This page is the side-by-side comparison. For the full walk-through of each type, use our deep pages on letters testamentary and letters of administration.

What is the difference between letters of administration and letters testamentary?

Letters testamentary are issued to an executor named in a will the court has admitted to probate. Letters of administration are issued to an administrator when there’s no will, and the court chooses. A third version, letters of administration with will annexed, covers a will that names no executor or whose named executors won’t or can’t serve.

	Letters testamentary	Letters of administration
When it issues	There’s a will that names an executor, and the court admits the will and appoints that person.	There’s no will. The court shall appoint an administrator (§ 8460).
Who’s chosen	The executor named in the will. That person has the right to appointment (§ 8420).	The person highest in the priority list in § 8461, subject to § 8462.
Who decides	The person who signed the will, subject to the court’s approval.	The court, on petitions from the people who want the job.
Petition box on DE-111	Letters testamentary, with probate of the will.	Letters of administration.
Title on DE-150	Letters, “Testamentary” box, and the court appoints an “executor.”	Letters, “Of Administration” box, and the court appoints an “administrator.”
Bond	Required unless the will waives it, or all beneficiaries waive in writing (§ 8481).	Required unless all beneficiaries waive in writing. There’s no will to waive it.
Who inherits	The will controls.	Intestate succession controls, starting at § 6400.
Out-of-country person	A named executor can serve even if not a U.S. resident (§ 8402(b)).	A person not resident in the United States isn’t competent to serve (§ 8402(a)(4)).
Removal by a higher-priority relative	Not available. Removal is for cause under § 8502.	Available, on petition of a relative higher in priority, at the court’s discretion (§ 8503).
IAEA	Available, unless the will bars it (§ 10404).	Available. No will to bar it.

The letters themselves look alike. Form DE-150 has one layout with boxes for “Testamentary,” “Of Administration,” “Of Administration With Will Annexed,” and “Special Administration.” The court clerk signs it, and it shows the county, the name of the person appointed, their title, and whether they have independent administration authority (§ 8405).

Who has priority to be appointed?

For an executor, the will settles it. For an administrator, Prob. Code § 8461 sets the order. Anyone lower on the list can serve only if those above decline or are unfit, and the person has to be entitled to succeed to part of the estate, with limited exceptions (§ 8462).

1. Surviving spouse or domestic partner
2. Children
3. Grandchildren
4. Other issue
5. Parents
6. Brothers and sisters
7. Issue of brothers and sisters
8. Grandparents
9. Issue of grandparents
10. Children of a predeceased spouse or domestic partner
11. Other issue of a predeceased spouse or domestic partner
12. Other next of kin
13. Parents of a predeceased spouse or domestic partner
14. Issue of parents of a predeceased spouse or domestic partner
15. A conservator or guardian of the estate acting at the time of death (with conditions)
16. The public administrator
17. Creditors
18. Any other person

Two twists matter in real families. A surviving spouse who was in a pending divorce or separation action and living apart at death drops to the next rank after brothers and sisters (§ 8463). And if the person otherwise entitled is a minor or has a conservator, the court may appoint the guardian or conservator or another eligible person (§ 8464). For the will-annexed version, a person who takes under the will has priority over one who doesn’t, though the court can depart from that if a non-taker has a much larger statutory share (§ 8441(b)).

Example: a Camarillo widower dies with no will, leaving three adult children and no spouse. The children are next on the list, and any of them can petition for letters of administration. If all three want it, the court decides among them. It may appoint more than one administrator (§ 8460(b)). Our page on dying without a will shows how the estate then passes under intestate succession.

Which letters do I need if the will names an executor who won’t serve?

If no executor is named, or every named executor has waived or can’t act, the court appoints an administrator with the will annexed (Prob. Code § 8440). That person follows the will, not intestate succession, and has the same authority an executor would have, except for discretionary powers in the will that the law doesn’t otherwise confer and the will doesn’t extend to other personal representatives (§ 8442).

A named executor who doesn’t petition within 30 days after learning of the death and the nomination may be held to have waived the right to appointment (§ 8001). A will can also give someone the power to name an executor or successor, and the designation has to be in writing and filed with the court (§ 8422).

Is a bond required for each type?

Usually, unless waived. Every person appointed must give a court-approved bond before letters issue, unless an exception applies (Prob. Code § 8480). No bond is needed if the will waives it, or all beneficiaries waive in writing and attach the waivers to the petition. This second route doesn’t apply if the will requires a bond (§ 8481(a)). The court can still require one for good cause (§ 8481(b)).

The amount can’t exceed the value of the personal property, plus the probable annual gross income, plus, if the personal representative has independent authority over real property, the value of the decedent’s interest in the real property (§ 8482(a)). If personal sureties give the bond instead of an insurer, the amount is twice as much (§ 8482(c)).

Example: personal property of $300,000, expected annual income of $6,000, and a house worth $700,000 with full independent authority. The bond cap is $1,006,000. An admitted surety insurer usually charges a premium, and the court may fix a minimum amount based on it (§ 8482(b)). On the DE-111 form, the petitioner can also ask that deposits be put in a blocked account instead of a bond. See our page on probate bonds and the glossary entry on the probate bond.

Does independent administration authority differ between the two?

Not in what it does. The Independent Administration of Estates Act lets the personal representative act without court supervision on many things (§ 10500). The petition can request full authority or limited authority (§ 10450). Limited authority leaves out four powers: selling real property, exchanging real property, granting an option to purchase real property, and borrowing money secured by real property (§ 10403). Both kinds of letters carry a notation showing which one the court granted (§ 8405(c)).

The difference is who can limit it. A will can provide that the estate isn’t to be administered under the Act, and then the court can’t grant the authority (§ 10404). A will can also restrict the powers (§ 10502(b)). An administrator has no will to restrict anything. Even with full authority, some acts always need court supervision: the personal representative’s own compensation, the attorney’s compensation, settling accounts, and final distribution and discharge (§ 10501(a)). Our glossary entry on the Independent Administration of Estates Act has more.

What forms are involved?

The same handful, whichever letters you want.

• DE-111, Petition for Probate. One form with boxes for letters testamentary, letters of administration with will annexed, letters of administration, or letters of special administration, plus a box for independent administration authority and a section on bond or blocked-account deposits.
• DE-121, Notice of Petition to Administer Estate. Gives notice of the hearing to heirs, beneficiaries, and creditors.
• DE-140, Order for Probate. The judge’s order appointing the personal representative and setting the IAEA authority and the bond.
• DE-147, Duties and Liabilities of Personal Representative. The personal representative must file an acknowledgment of receipt of this statement before letters issue (§ 8404).
• DE-150, Letters. The authority document itself. The person appointed signs an affirmation that they will perform the duties according to law, and the clerk signs and seals it.

The order says in capital letters that the appointment isn’t effective until letters have issued (§ 8400(c)). Banks and title companies often want a recent certified copy of the DE-150. The clerk’s certification on the form states that the letters haven’t been revoked or set aside. Our page on filing a petition for probate covers the filing steps.

What about special administration?

Letters of special administration are a short-term appointment. The court may appoint a special administrator when the estate needs immediate protection, to preserve it, for a specified term or for specific acts (§ 8540). The letters on DE-150 can show an expiration date. Special administration is the tool for a gap, such as a contested appointment or a vacancy after removal (§ 8523).

Do the two types have the same powers and duties?

Mostly. Once letters issue, executors and administrators have the same core duties. The personal representative must use ordinary care and diligence (§ 9600), take possession of the estate’s property, collect debts, and pay taxes and preservation costs (§ 9650). The inventory and appraisal is due four months after letters issue (§ 8800(b)). Statutory compensation is the same percentage scale for both, four percent on the first $100,000 down to lower rates on larger estates (§ 10800). See executor and trustee fees. The big differences come earlier, at appointment.

Frequently asked questions

Do I need letters if the person had a living trust?

Not for assets properly held in the trust. The successor trustee administers those under the trust instrument (Prob. Code § 16000). Letters are for assets left outside the trust that have to pass through probate. See probate or trust administration.

Can I act as executor before letters issue?

Barely. Until then a named executor may pay funeral expenses and take necessary steps to preserve the estate, and nothing more (§ 8400(b)). See our page on the first 30 days for what’s safe to do.

How long does it take to get letters?

The court sets the hearing for a day not less than 15 nor more than 30 days after the petition is filed, or 30 to 45 days if the petitioner asks (§ 8003(a)). Notice has to be delivered at least 15 days before the hearing (§ 8110), and it’s published as well (§ 8120). Letters issue after the order and after the bond and the acknowledgment of duties are filed (§ 8404). Court calendars add time. Ventura County probate is heard at the Juvenile Justice Center, 4353 E. Vineyard Ave., Oxnard, usually Courtroom J6.

What is the difference between an executor and an administrator?

The will. An executor is named in the will. An administrator is chosen by the court under § 8461 when no will exists. Once appointed, they do the same job. Our page on executor roles explains what it involves.

Can two people share the job?

Yes. The court may appoint one or more administrators (§ 8460(b)), and a will can name co-executors. If one leaves, the others complete the administration unless the will or the court says otherwise (§ 8521).

What if there’s a will but nobody wants to serve?

The court appoints an administrator with the will annexed (§ 8440). Beneficiaries under the will have priority (§ 8441). Someone in the family can usually take it, or the court can turn to the public administrator on the list (§ 8461).

Do I have to use a lawyer to get letters?

The petition is a court filing with notice and publication requirements, and mistakes cost weeks. See our page on probate without a lawyer for a plain look at when that works. I handle probate petitions for families in Ventura, Santa Barbara, and Los Angeles counties, contested or not. Will and trust contests, and anything headed to trial, I refer to litigation counsel.