Q: My mother had a living trust, now a revocable Trust. I am trustee. However, she had a IRA not In trust.

A: Letters Testamentary or Letters of Administration can only be issued by a court. It appears the primary and contingent beneficiaries of your mom's IRA died before the her. If so, the IRA will pay the money to your mother's probate estate, which means you will have to begin probate proceedings and have someone appointed Personal Representative or Administrator of her estate. It also seems likely that your mother had a Last Will and Testament and that it is probably a "pour-over" Will, which means whatever comes into her probate estate will be distributed to the Trust, which will determine their ultimate distribution. Contact an experienced probate lawyer in your state to be sure the circumstances are as you describe and for details and legal advice.

PS: My comments here are for general information only and are not legal advice about your situation nor do they create an attorney-client relationship between us. Contact a lawyer in your state for legal advice.

A: Letters testamentary are only available from the probate court. However, depending on the value of the IRA (and any other property not included in the trust), you may be able to obtain the funds with just an affidavit.

A: Dear Oceano:

In California, Letters of Administration (a.k.a Letters Testamentary) are only issued following a noticed Probate hearing.

Assuming that your Mother died in California, so our laws control, there may be alternatives.

If the value of the IRA is less than $150,000 you can use a small estate collection affidavit under Probate Code s. 13100.

If it is over $150,000, you still may be able to avoid probate. Depending on how your Mother's estate plan was drafted, you may be able to get a court to order the holding company to pay the proceeds over to the Trust under Probate Code s. 850. (A.k.a. a Heggsted Petition.) This is a lot cheaper and quicker than a full probate.

Even if a fuil probate is required, an attorney may be willing to reduce their statutory fee if the probate is really simple.

I recommend that you discuss how to proceed with an attorney, not only to find the best way to proceed, but also to discuss the tax consequences. (Trusts and estates as beneficiaries are limited on how they take the distribution form an IRA to an all at once, or over five years. Because a traditional IRA is taxed on distribution, their sometimes is an advantage to spacing out the distribution.)

The lawyer can also help you with the Trust administration. Layperson Trustees often think that all that is required is to round up the assets and pay them to the beneficiaries as directed. However, successor Trustees have significant duties. Missing a step may, at the least, cost the trust money and at worst result in civil damages against the Trustee.

And, unlike a probate estate where a court "signs off" on your actions, the statute of limitations for a Trustee's breach of their duty is four years from the date the breach is discovered. This means that proper reporting and accounting is critical to reducing your liability.

If you do not know where to find an attorney, try your local County Bar Association. Most county bar associations offer attorney referral programs where, for a nominal or no fee, you receive a consultation with an attorney. (In my home county, $35.00 gets you a 30 minute consultation.)