What Is a Letter of Testamentary and Why Do You Need One?

A letter of testamentary gives the estate executor official authority to settle estate matters like paying off debts, filing estate taxes, or transferring assets to the listed beneficiaries. 

Without an official authority certificate, you, as the estate executor, won’t be able to manage a loved one's estate as quickly or efficiently as you would like. Financial institutions, brokerage firms, government agencies, and legal representatives of beneficiaries will want proof of your legal authority and power.

This article unpacks it all—what letters of testamentary are, how they should be written, and why you should get the letter as soon as you are appointed an estate executor.

What is a letter of testamentary?

A letter of testamentary is a legal document granted by the probate court that permits a person named an executor to administer an estate. Letters of testamentary, also called Letters Testamentary, allow the executor of an estate to serve as a personal representative on behalf of someone who has passed away when handling financial and other affairs in accordance with state probate laws.

It's helpful to think of a letter of testamentary as the courts’ official announcement that you are the executor and have the legal authority to manage the estate.

For an executor, the legal implications of a letter of testamentary are:

• Legal authority. Along with a copy of the deceased person's death certificate, letters of testamentary equip the executor of an estate with the necessary power to fulfill their duties.
• Liability. Executors are expected to act in a fiduciary manner, which means they're obligated to act in the best interests of the estate and its beneficiaries. You can be held liable if you fail to meet this duty. As long as you act in good faith and in accordance with the deceased person's will, you're personally protected from any estate administration mistakes.
• Eases probate and estate administration. The letter serves as your proof of authority as named executor. With it, you can distribute assets owned by the deceased, access bank accounts, transfer property, and handle other legal or financial matters.

Why do you need letters of testamentary?

As a named executor, you may believe you can start your duties as soon as the person is dead. In reality, it's not that straightforward. The letter of testamentary will be required to:

• Access financial accounts. Banks and other financial entities use the letter to verify your authority before you can access and manage the bank, investment, and other financial accounts belonging to the deceased.
• File estate taxes. The Internal Revenue Service (IRS) may warrant the letter before you can settle the estate's tax obligations, like income and estate taxes.
• Sell or transfer real estate. Real estate agents and title companies may demand the letter of testamentary before you can sell or transfer property.
• Distribute assets. Beneficiaries and heirs may want to verify your authority to ensure you're distributing assets as per the will.
• Represent estate in legal matters. The document shows the court that you are the right person to represent the estate's interests.
• Transfer vehicle ownership. The Department of Motor Vehicles (DMV) will require proof before they can transfer vehicles to the deceased's beneficiaries.
• Collect debt owed to the estate. Those who owe money to the deceased are likely to want proof of your legal right to recover money.

How do you get a letter of testamentary?

Obtaining Letters Testamentary becomes your top priority once you're named the estate executor. While the exact procedure can vary by state, it generally follows a five step process. 

Step 1. Obtain copy of the will

If you don't have a copy of the deceased person's will, speak to beneficiaries or the estate planning attorney for your copy.

Step 2. Get the death certificate

To get a certified copy of the death certificate, you can reach out to the coroner's office, local vital records office, or a third-party service provider like VitalChek. It's better to request multiple copies as you may need to submit official copies to different entities, like banks and brokerage firms. 

Step 3. Compile necessary documents

Gather all the other documents the court requires. This could include a Letters of Testamentary application form, your official government ID, estate information and inventory details, and information about the deceased. Contact the probate court to learn the exact requirements. 

Step 4. File documents in probate court

File all the documents and pay the associated court fees with the probate court. Upon successful submission, a hearing date will be set.

Step 5. Appear in court

During the court hearing, a judge or court representative will make sure you meet the state qualification requirements, verify the will and other submitted documents, and assess your capability to serve as executor. It is then the letters of testamentary will be issued. 

What's included in a letter of testamentary?

Generally, letters testamentary include the following details:

• The deceased person's name and date of death
• Name of the county in which they resided
• Executor's name and mailing address
• Name, signature, and seal of the clerk of probate court who authorized the letter
• Scope of testamentary duties (what the executor can and cannot do)

The final structure and wording of the letter of testamentary can change between states, but that doesn't impact the authority or power of the letter.

Legal authority of executor in managing an estate

Let's say that your aunt names you the executor of her estate in lieu of her spouse and adult children. Once you have the letter of testamentary in hand, you'll be able to take the next steps to administer your aunt's estate. But there are certain guidelines on what you can and can't do.

What an executor can do

It's an executor's obligation to act in a fiduciary manner. Once they have the letter of testamentary from the courts, they're able to do the following:

• Send a "Notice to Heirs" document to the deceased person's family members and individuals mentioned in the will (if one exists) that the probate process has begun.
• Contact the decedent's financial institution to access their bank account and other financial accounts like a safety box or retirement portfolio that are included in the estate.
• Manage real estate and other property until those assets can be distributed by paying utilities and performing maintenance work.
• Notify creditors that the decedent has died and give them a deadline to make claims. Executors can also make a list of outstanding debts, credit bills, and mortgages.
• Sell assets via an estate sale to cover any substantial debt or taxes.
• Pay expenses, taxes, and outstanding debts of the estate to settle the books before distributing remaining assets.
• Distribute deceased person's assets to the correct beneficiaries and heirs as per their wishes.
• Hire a probate attorney to handle legal issues that arise like contention of the will or conflict between beneficiaries. 

What an executor can't do

The letter of testamentary is not a blanket document that allows an executor to act in any way they'd like. There are some things an executor can't do, including:

• Changing the beneficiaries of the estate or excluding beneficiaries that were named in the will
• Excluding heirs who are entitled by law to receive an inheritance when the person dies intestate
• Blocking adult children or other loved ones from contesting the terms of the will
• Misusing or abusing money like transferring money from the estate to their own account in the same bank

If the beneficiaries of an estate believe that an executor has committed a breach of fiduciary duty, they can file a case with the local court asking to have the executor removed.

Petitioning the probate court for a letter of testamentary without a will

When someone dies without a will, it can add a wrinkle to probate and estate administration. However, it's possible to get the equivalent of a letter of testamentary when there's no will to refer to the deceased person's wishes for distributing their estate assets.

To become the rightful administrator you'll need to:

• Initiate the probate process with the appropriate local court by filing a petition.
• Submit documents required, such as death certificate, identity proof, relationship to deceased, and estate evaluation.
• Attend the probate hearing where the judge evaluates all submitted documents and makes the final decision on who is fit to handle the estate. The court then grants Letters of Administration to the named administrator.

If your loved one has passed away without a will, and you want to be named administrator, seek legal advice from a probate attorney. They can guide you through the complex, intestate probate process and ensure you get the appointment you desire. 

Letters of testamentary vs. letters of administration: What's the difference?

They might appear to be the same, but they aren't.

Similarities: Both letters of testamentary and letters of administration convey the same powers and authority to someone who has been charged with overseeing a deceased person's estate. The duties performed by an executor vs. an administrator are identical.

Difference: The difference between the two letters boils down to two key points: the presence of a will and who appoints them. The court grants a letter of testamentary when an executor is named in a will by the deceased person. On the other hand, the court issues a letter of administration in situations where the person dies intestate (without a valid will), and, therefore, the probate court appoints the administrator, usually a spouse or adult child. 

Naming an executor is an important part of an estate plan

Estate planning is all about ensuring your family and loved ones are cared for after your death. By naming an executor, you have a trusted voice that will efficiently handle all legal and financial matters after your death.

Skipping estate planning and naming of an executor can:

• Create more chaos and conflict between family members as each beneficiary may have different opinions on how assets should be distributed.
• Delay the transfer of assets to heirs and beneficiaries because estate will undergo probate.
• Lead to tax issues like missed or incorrect tax filings because there is no one to take the lead on these issues.
• Decrease estate value because costs associated with attorney fees, probate, and resolving disputes will decrease what gets passed on.

As a general rule, it's important to choose someone whom you can trust to adhere to the terms of your will. If you have concerns about the will being unclear, you can take the further step of drafting a letter of intent or letter of instruction. These documents allow you to provide a detailed explanation of your wishes to your executor and your heirs.

Consult an estate planning attorney to create an estate plan or get advice on how to choose an executor.

FAQs

How much does a letter of testamentary cost?

The cost can vary from state to state, but you could easily spend several hundred or thousand dollars on testamentary letters. Let's break it down a bit further.

The two most significant costs associated with obtaining a letter of testamentary are the filing fees you'll pay to the local court and attorney's fees if you're seeking legal help to complete the necessary paperwork.

• Filing fees. These processing fees are used to file and process public records. Depending on your court and state, you can expect to pay between $50-$1,200.
• Physical copies. You may need multiple copies of Letters Testamentary; the average cost of each official copy is around $5-$20.
• Legal fees. If you seek legal help to complete the necessary paperwork or want advice on streamlining the process, expect to pay an estate planning lawyer around $250 to $350 per hour, depending on their experience and location. 

What is an example of a testamentary? 

In legal terms, a testamentary document pertains to wills. There are different ways the word can be used. In the context of a letter of testamentary, it means a legal document that an executor of an estate needs to have to exercise their authority. In estate planning, a testamentary trust is a trust that's created through a will and takes effect when the willmaker dies.

Do I need a lawyer to get a letter of testamentary?

You're not required to hire an attorney to apply for a letter of testamentary, but having a legal expert do so may prove to be to your benefit when it comes filing paperwork, navigating the entire probate process, and managing complex estates. Any missteps can further extend the already long settlement process.

Do I need a letter of testamentary for a trust? 

Letters of testamentary are not required for the administration of a trust. A trust may be incorporated into an estate plan alongside a last will and testament. Trusts are exempt from probate and court intervention under state law, however, with a trustee rather than an executor handling the administration. A trustee does not need to obtain letters of testamentary to perform their duties. 

How long does it take to get letters of testamentary?

The time frame for getting a letter of testamentary document issued can take several weeks to months, depending on the court's schedule and workload.

Rebecca Lake contributed to this article.