A letter of testamentary is created by the probate court for the executor or personal administrator of an estate. Since this individual must manage estate assets until the probate process is complete, they need proof of their authority to do so. The letter provides that proof.
This guide explains how this document works, when and how to get one and what an executor can do with their letter.
What Is a Letter of Testamentary?
An executor of an estate is named in a last will and testament and takes responsibility for the following tasks:
- Filing probate paperwork with the court
- Notifying potential heirs and creditors of the probate process
- Managing estate assets during probate, which can include paying bills out of the estate bank account
- Distributing assets to beneficiaries
It is important for third parties to know who the executor is, and the executor needs proof of their authority to do their job correctly. A letter of testamentary, which is issued by the probate court, provides this proof.
The letter is a simple document that typically includes the following information:
- The court that issued the letter
- The name and contact details of the executor (who is also called a personal representative)
- That the personal representative was named in the will of the deceased person (who is called a decedent)
- The date the executor was given authority to manage the estate of the decedent
With this letter and the death certificate, the executor has the necessary paperwork to exercise their authority.
Letter of Testamentary vs. Letter of Administration
A letter of administration is another legal document that can be used during the probate process, but it serves a different purpose and it’s important to understand the difference.
A letter of administration is used by the court if someone passes away without naming a personal representative or executor. The court appoints someone to fulfill the role of managing the estate and the probate process, and the court will typically create a Letter of Administration giving this individual authority to act.
How Can You Get a Letter?
You can get a letter of testamentary by filing probate paperwork with the court and coming prepared with the evidence you need to show that you have been named as an executor. Typically, you need to provide the following documentation to the court:
- A copy of the decedent’s last will and testament
- A death certificate
- Proof of your identity to show you are the person who was named as executor in the will
You may need to pay a court filing fee to initiate the probate process, which can vary based on where the will is being probated. You may also need to pay for a physical copy of the letter of testamentary that the court issues to you.
What If There is No Will?
If there is no will, then there is no executor to oversee the estate administration process. However, someone still needs to manage the decedent’s assets and take care of all of the steps involved in probate.
A surviving family member or loved one of the deceased can open a probate case after a death, even when no will has been left behind. This involves filing some basic court paperwork and attending a hearing.
The court will then usually appoint an administrator in these circumstances. This is generally someone who was close to the deceased, such as a spouse or an adult child. The court considers who has the desire and ability to serve in the role that an executor would have fulfilled, had one been named.
When an administrator is appointed, the court issues a letter of administration rather than a letter of testamentary.
What If Assets Are Held in Trust?
If all assets are held in trust, none of this paperwork is needed and it is possible to avoid the probate process entirely. This is one of the reasons why people create trusts.
The trust becomes the legal owner of the assets the trust creator transfers into it. The trust creator often acts as the trustee during their lifetime and names a backup trustee who takes over in the event of death or incapacity. That individual has authority to manage trust assets and to transfer them through the trust administration process without any additional letters from the court.
However, any assets that have not been placed in trust go through the probate process and an executor or personal representative must obtain a letter to manage them.
Getting Help with Estate Planning or the Probate Process
Whether you are making a last will and want to choose an executor, need help with a comprehensive estate plan or are trying to navigate the probate process after a loved one’s death, it can be beneficial to work with an experienced attorney.
An estate planning lawyer helps you to understand your rights and obligations and guides you through the process of making sure the legacy of the deceased is secure.
Frequently Asked Questions (FAQs)
What are testamentary duties?
An executor has many duties while managing the estate of the deceased and facilitating probate. Some obligations can include filing court paperwork, notifying beneficiaries and creditors, obtaining the paperwork from the court showing their authority and managing assets effectively before ensuring they are distributed to the appropriate heirs.
How long does it take to get letters of testamentary?
The length of time it takes to obtain these documents varies depending on many factors including where the probate process is taking place, how quickly the executor files paperwork with the court and whether there are any questions about who should serve as the executor. In general, it may take several weeks to get these initial letters while the entire probate process could take months or even years.
Do I need a lawyer to get a letter of testamentary?
You do not need a lawyer to obtain proof from the probate court of your authority to manage the decedent’s affairs. However, you may wish to get legal help to assist you with filing the paperwork to request this documentation and to help you fulfill your duties throughout the entirety of the probate process.
