Letters testamentary and letters of administration are both court-issued documents that authorize someone to act on behalf of a deceased person’s estate, but the difference comes down to one key fact: whether the person who died left a valid will. If there is a will, the court issues letters testamentary to the executor named in that document. If there was no will, the court issues letters of administration to someone the court appoints.
1. Whether a Will Exists
The most fundamental difference between these two documents is what triggered their issuance. Letters testamentary are issued when the deceased left a valid will that has been admitted to probate. The will names an executor, and letters testamentary give that person the legal authority to carry out the instructions in the will.
Letters of administration are issued when no valid will exists, when a will exists but does not name an executor, or when the named executor is unable or unwilling to serve. In these situations, the court appoints an administrator rather than confirming someone the deceased already chose. If a valid will exists but names no executor, or the named executor cannot serve, the court appoints an administrator who is still bound by the will’s terms rather than intestate succession rules.
No one has the authority to administer an estate until letters are issued under California Probate Code § 8400.
2. Who Gets Appointed
With letters testamentary, the person appointed is the executor named in the will. The deceased chose this person during their lifetime specifically because they trusted them to manage the estate. The court still has to confirm the appointment, but the choice originated with the person who died.
With letters of administration, the court makes the selection. California law sets out a priority order for who may be appointed administrator. Under California Probate Code § 8461, the priority order begins with the surviving spouse or domestic partner, then children, and then others, such as grandchildren, parents, and more distant relatives, in an order the statute specifies in full.
If no family member is available or willing to serve, the court may appoint a creditor or public administrator. An attorney can walk you through where a specific family member falls within the complete statutory order.
3. The Source of the Appointee’s Authority
An executor’s authority flows from the will itself, which is a legal document that expresses the deceased’s intentions. Letters testamentary confirm and formalize that authority. The executor acts in accordance with the will’s instructions and is bound by what it says.
An administrator’s authority comes entirely from the court. Because there is no will to follow, the administrator does not carry out anyone’s stated wishes. Instead, they distribute the probate estate according to California’s intestate succession laws under Probate Code § 6400 et seq., which set out a fixed order of inheritance based on family relationship. The administrator has no discretion to alter who receives the estate or in what shares, regardless of what they may know about the deceased’s preferences.
4. The Scope of Discretion in Administering the Estate
An executor working under letters testamentary has a roadmap: the will. While executors still have fiduciary duties and must act in the best interests of the estate and its beneficiaries, the will provides specific direction that narrows their decision-making. An executor is responsible for:
- Locating and securing all assets identified in the will
- Paying valid debts, taxes, and estate expenses before any distribution
- Carrying out specific bequests to named individuals or organizations
- Distributing the remaining estate according to the will’s instructions
Where an executor follows the will’s instructions, an administrator working under letters of administration has no such roadmap. Their job is to identify estate assets, pay valid debts and expenses, and distribute whatever remains according to California’s intestate succession hierarchy. There are no special bequests to honor and no flexibility to direct assets to people outside the statutory inheritance order.
Friends, unmarried partners, and organizations the deceased cared about receive nothing unless they were named as beneficiaries on accounts or other assets that pass outside of probate. This is one of the clearest illustrations of why having a current, properly executed will matters. Without one, even carefully considered personal wishes have no legal standing in the probate process.
5. How Either Document Can Be Revoked
One point worth understanding about both letters testamentary and letters of administration is that neither is permanent. Both are issued for a specific purpose in connection with a particular estate. Under California Probate Code § 8502, the court has the authority to remove a personal representative who fails to fulfill their duties, which would result in the revocation of the letters issued to them.
Both also require the personal representative to act as a fiduciary, meaning they must prioritize the interests of the estate and its beneficiaries above their own. Mismanaging estate assets, failing to account for funds, or acting in self-interest can expose a personal representative to liability regardless of whether they hold letters testamentary or letters of administration.
Starting the Process
Obtaining letters testamentary starts with filing the will and a petition for probate with the court. The court reviews the will, holds a hearing, and if everything is in order, admits the will to probate and issues letters testamentary to the named executor. Obtaining letters of administration follows a similar path through probate court, but without a will to anchor the petition, the court must determine who should serve. The process for both begins with filing:
- A petition for probate with the superior court in the county where the deceased lived
- A certified copy of the death certificate
- The original will, if one exists
- A filing fee set by the court
If multiple family members want the administrator appointment, or if someone objects to a proposed administrator, the process can become contested and take longer to resolve.
Talk to Our San Diego Probate Attorneys
Whether an estate involves a will or not, the California probate process carries specific legal responsibilities and court deadlines. Lisa J. Frisella and the team at Frisella Neilson, APC assist individuals and families in San Diego with probate administration, from the initial court petition through final distribution.
If you have questions about letters testamentary, letters of administration, or the probate process generally, contact us online to speak with our office directly.
We serve all areas in San Diego and throughout California.
Frisella Neilson, APC
