Letters Testamentary

Letters testamentary are official documents provided by a probate court to an executor or personal representative of a will that give them the legal authority to take control of a deceased person's estate and fulfill the wishes of a will.

These letters are often an early step in the probate process, which is the official settling of someone’s assets, taxes, and accounts when they pass away. You usually get them after you petition for probate or are appointed executor by the court. They're just a form signed by the court, really.

Executors need these letters to access sensitive accounts, safe deposit boxes, and any other assets as they build their inventory of assets required by the courts. If you don't have them, most banks and institutions won't work with you to transfer any assets of someone who has passed away, making it impossible for you to distribute assets to beneficiaries.

When probate is required for an estate, that document is called “Letters Testamentary” or “Letters of Administration” (depending on the state and presence of a will).

In some states, the name of the document issued by the probate court is based on whether the deceased (known as the decedent) died with a Will or without one.

For example, in California, if the decedent had a Will, the court will issue “Letters Testamentary” and if the decedent did not have a Will, the court will issue “Letters of Administration”.

Letters Testamentary are just a form signed by the probate court that says, "Hey. This person has the authority to move and access the deceased's stuff." It's really that simple.

You use these to get around banks and institutions that normally only allow access to a specific person.

Usually when you request to manage an account, the institution will ask for your letters testamentary or letters of administration along with a death certificate and any additional forms the company requests.

Are letters of administration and letters testamentary the same thing?

Sort of. It depends on the state, but typically letters testamentary involve people who died with a will, and letters of administration involve people who died without a will.

Who applies for Letters Testamentary?

You need to apply for Letters Testamentary if you are the executor named in the decedent’s will. If the decedent did not have a will, the closest living relative needs to apply by petitioning the court. This is usually the decedent’s surviving spouse or child.

Sometimes, multiple children will apply to be co-executors and the Letters will name them both. However, keep in mind that all executors must sign all documents where an executor’s signature is required and some banks will not work with co-executors.

What do Letters Testamentary Look Like?

These are very simple forms. Here's an example from David Silverman of NY.

How does someone get their Letters Testamentary?

1. Find out if you were appointed executor in the will. If there was no will, then talk to family members and decide who should become the executor
2. File an application for probate (go here to get the forms you need using Atticus, or google "application for probate" with your county and state afterward)
3. File that form with the court in the county/state where the person was permanently living
4. Let family members, heirs, creditors, and other beneficiaries know
5. Attend the hearing
6. Be appointed as executor or personal representative by the judge
7. Get your letters testamentary from the court
8. Fulfill the rest of your duties as executor or personal representative

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Let's say Jill from Austin's father died, and she was named executor or personal representative in the will. One of the first things she tries to do after he passes is gain access to his bank account, but the bank says they need to see her letters testamentary and a death certificate. So, she petitions the court to begin the probate process and after she is officially recognized as the executor, she receives a her letters testamentary signed by the probate court. Then, she sends those to the bank along with the death certificate and receives access to that account.