If you have recently learned that you are the executor of a will for a family member who recently passed away, you may have heard that you need letters testamentary. These letters are an essential part of estate administration and are one of the first things you will need to worry about in your new role. Learn about letters testamentary, what they do, and how to obtain them.
What Are Letters Testamentary?
Letters testamentary or a letter of testamentary is a court order issued by the probate court where the will is probated. The document gives the executor of a will the power to act on behalf of the estate and in the role of a fiduciary. Letters testamentary are provided during the probate process.
Why Do I Need Letters Testamentary?
Before an executor can fulfill their duties, they must be granted the authority to act in this capacity. Simply being named in a last will and testament as an executor is not enough. This legal power must be conferred by the court. Only the probate court has the power to provide this authority. Without a letter of testamentary, the executor has no official power.
Letters testamentary give the executor of a will the legal authority to act on behalf of the estate. Letters testamentary are necessary for the executor to conduct the financial affairs and logistical matters that are necessary for the administration of the estate.
With a letter of testamentary, the executor can act on behalf of the decedent, such as contacting financial institutions where the decedent had a bank account and access the funds in them. Typically, having a letter of testamentary and a death certificate is sufficient to handle the basic financial duties involved in administering the estate. Without letters testamentary, financial institutions, creditors, and other entities may not speak with you (or even be permitted to speak with you).
What Do Letters Testamentary Do?
Letters testamentary allow the executor to administer the decedent’s estate according to the terms of the last will and testament. With these documents, the executor can conduct all of the necessary duties to open, administer, and close the estate. With letters testamentary, an executor may:
- Access funds in bank accounts and other accounts held by the deceased person
- Collect funds owed to the deceased person
- Collect estate assets
- Gather and inventory estate assets
- Open a bank account in the name of the estate
- Receive claims from creditors
- Pay off debts and taxes the estate owes
- Close accounts in the name of the deceased person
- Sell real estate
- Transfer and sell estate property
- Provide distributions of estate assets to beneficiaries
Are Letters Testamentary the Same as Letters of Administration?
Letters testamentary and letters of administration are not the same, but they are similar. Letters testamentary are provided when a deceased person makes a will, known as the testator. The named executor submits the original will to the probate court where the decedent resided immediately before death and requests to be named executor and to obtain letters testamentary. Letters testamentary show the executor has been qualified by the probate court to act in this fiduciary capacity and has the legal authority to act on the estate’s behalf.
Letters of administration are used when the deceased person died without a will or intestate. Probate is still necessary in these situations. However, there is not a person who the decedent has nominated to act in this capacity. Therefore, an interested person (such as a surviving spouse or next of kin) would need to file a petition to open a probate case. A hearing date will be set on the matter. There, an administrator or personal representative is appointed to administer the estate. The administrator receives letters of administration, which generally provide the same authority as letters testamentary. The letters of administration also show that the court has qualified the individual to act as the personal representative.
There may be additional steps involved in appointing an administrator than an executor. The deceased person has nominated a loved one or other trusted individual when letters testamentary are sought. However, there is no such appointment with letters of administration. State law may have a certain preference for whom to appoint as a personal representative. For example, in Texas, the following order applies to whom should be appointed as administrator of the estate:
- The surviving spouse
- The principal beneficiary of the estate
- Any beneficiary of the estate
- The decedent’s next of kin
- A creditor of the deceased
- Any person of good character residing in the county of the probate court
- Any other person not disqualified from serving as a personal representative of the estate
It may also be necessary to have the court to determine the proper heirs to the estate to name a proper administrator. This is known as a declaration of heirship. This can also help the administrator distribute assets to the appropriate parties when the time comes.
How Do I Obtain Letters Testamentary?
The process to obtain letters testamentary may vary by state, but the process usually includes these steps:
File an Application for Probate
The named executor files an application to begin a probate proceeding. The executor may need to provide the following information along with the petition:
- The original will
- The death certificate
- Identifying information
- Any form the court requires
Additionally, the executor pays the filing fee to open the case. A hearing date will be scheduled in the matter, in which the will is submitted to the probate court and heirs and beneficiaries have a chance to contest the appointment of the executor.
The person who wants to be appointed as the executor may have to show they are qualified to serve in this capacity. For example, in New York, the named executor must prove their eligibility as established by the Surrogate’s Court Procedure Act.
Notify Interested Parties
The person wanting to be named as the executor must notify interested parties of the pending hearing. This may include heirs, beneficiaries, and known creditors.
Appear at the Hearing
The person hoping to be named as the executor must appear at the hearing. During this hearing, the court evaluates the original will, verifies the information included in the petition, and ensures the named executor can legally serve in this capacity.
Be Appointed by the Judge
If the hearing goes according to plan, the issuance of letters testamentary follows. The judge appoints the executor. The executor may have to sign an affidavit saying that they will fulfill their fiduciary role and accept the letters testamentary and pay a nominal fee.
What to Do After the Issuance of Letters Testamentary
After you receive letters testamentary, you can begin fulfilling your official duties, such as:
- Opening a bank account in the name of the estate
- Collecting the deceased person’s assets
- Obtaining insurance to safeguard the estate assets
- Preparing inventories, accountancy, and other legal documents and schedules with the court
- Paying debts of the estate
- Filing the estate’s tax return
- Distributing assets to beneficiaries
Letters Testamentary FAQs
Executors often have questions about fulfilling their role and letters testamentary. Here are some of the most frequently asked questions about letters testamentary:
How Long Will It Take to Get Letters Testamentary?
The amount of time it takes to get letters testamentary depends on when the petition for probate is filed. Generally, letters testamentary are issued within a few weeks after the petition is filed if there is not a contest to the will or there are no problems with the petition. If these factors are present, it will likely take significantly longer for letters testamentary to be issued.
Do I Need a Lawyer to Get Letters Testamentary?
No. You do not generally need a lawyer to open a probate proceeding or obtain letters testamentary. However, if you need legal advice or want assistance with this process, you can seek help from a probate attorney.
What Should I Do If I’m Told I Need Letters Testamentary?
After a loved one dies, you may try to access their assets and be informed by a financial institution or other entity that you need letters testamentary. This is an indication that you need to begin a probate proceeding. You can begin completing a petition to open a probate case and request letters testamentary. You can seek assistance from a probate law firm if you would like.
Do I Need Letters Testamentary?
Whether or not you need letters testamentary depends on your role and the type of assets the deceased person owned. Individuals can avoid the probate process through non-probate transfers and the creation of trusts since these methods transfer assets from the estate to others. Examples of these transfers include:
- Real estate that passes to the surviving owner pursuant to ownership owned as joint tenants with the right of survivorship
- Real estate that goes to a beneficiary pursuant to a lady bird deed
- Other assets that pass pursuant to a joint tenancy
- Life insurance proceeds that go to a beneficiary
- Retirement account proceeds that go to the named beneficiary
- Funds in a bank account that go to the named beneficiary pursuant to a payable on death designation
- Stocks and bonds with a transfer-on-death designation
Additionally, many states allow for “small estate administration,” which allows the administration of estates under a certain value. In some states, a beneficiary files an affidavit with the court and can then collect the estate assets with this document alone.
What Are Preliminary Letters Testamentary?
Some states like New York provide preliminary letters testamentary when the named executor proves that they need immediate access to estate assets or when some estate planning business needs to be conducted but there is an issue with the will or administrator of the estate. For example, if a will contest arises, it may take over a year for the court to determine the validity of the will. In the meantime, the surviving spouse and children may need maintenance payments or the named executor may want to prevent estate assets from being neglected or losing value.
The process of acquiring preliminary letters testamentary is similar to obtaining regular letters testamentary. The named executor submits an application for these letters and details information such as:
- Why they are seeking preliminary letters testamentary
- Proof they have provided notice to all interested parties
- A list of the estate assets
- An estimate of funds the estate would obtain in the coming months
The executor may also need to submit an affidavit that explains why they need the case treated as a priority.
If preliminary letters testamentary are issued, they may only be valid for a limited amount of time, such as six months.
Can Letters Testamentary Be Revoked?
Yes. Letters testamentary provide the legal authority for an executor to act on behalf of the estate. If the court finds that the executor did not have this legal authority because they obtained them through fraud or in a wrong jurisdiction, they can be revoked. Letters testamentary could also be revoked if the executor acted inappropriately or violated their fiduciary duty.
Takeaway
Letters testamentary are an essential part of a case that is probated. After filing a petition to open a probate case, you will also need to secure letters testamentary to act on behalf of the estate. With letters testamentary secured, you will have the legal authority to fulfill your duties as an executor.