A letter of testamentary is not a letter. Rather, it’s a court order authorizing you to act as the executor of the estate. A lawyer cannot write one for you but a lawyer can represent you in getting letters testamentary from the court.
A bank representatives probably told you that “to collect the assets of the deceased, you need to contact a lawyer and obtain a letter of testamentary.” The confusion stems from the fact that although most people need a lawyer in order to obtain a letter of testamentary, the lawyer cannot directly issue one.
In order to get a letter of testamentary, you would have to have your lawyer apply to the probate of the county where the deceased resided. You would need your estate attorney help you put together the documents, such as the petition for probate, the original last will and testament of the decedent, the original death certificate, a copy if the funeral bill, as well as other documents such as waivers, citation, proposed order, affidavit of heirship, family tree, due diligence, etc.. Your attorney would help you officially notify everyone involved in the proceeding to obtain the letter of testamentary. Since a court hearing is typically required in order for the court to issue a letter of testamentary, your estate lawyer would appear in court on your behalf and present all of those documents to the court.
As you realize by now, a letter testamentary is a legal term for a court order issued by the Surrogate’s Court or Probate Court, which permits a person to act on behalf of an estate of a person who died with a will. A person who is nominated by a will to be an executor of an estate does not have the power or authority to act on behalf of an estate until they apply for, and are issued, letter of testamentary by the Surrogate’s Court.
The document is actually called Letters of Testamentary, and like we said, it’s not a letter – it’s a court order. The confusion stems from the fact that Order used to be called Letters hundreds of years ago and the name stuck.
Letter of Testamentary authorizes a person to act as a representative of an estate. They allow a person to perform responsibilities of an estate. Here are some of the things a person can do once they are appointed as an administrator of an estate by letter of testamentary issued by the Surrogate’s Court:
Those things would be impossible to do without a letter of testamentary. The banks will not give you information and will not transfer the assets, the county recorder will not record property deeds, and a buyer will not buy a property from you.
You often need more than one, since each bank and government agency would require an original. Also, some institutions require a more official-looking document. This is why the court can also issue a Certificate of Appointment of Executor, which is printed on a watermarked blue and red paper and looks similar to a death certificate, birth certificate or marriage certificate.
People often call lawyers and ask them to write a letter of testamentary. As you know by now, a lawyer cannot write one. When a bank tells you that you need to contact a lawyer, they mean that you should contact a lawyer in order to represent you before the court.
Even if the decedent died in a different state, and you have a letter of testamentary from that state, you will still need to obtain a separate letter of testamentary by verifying the out-of-state letter of testamentary through an ancillary probate proceeding.
Letter of testamentary is issued when a person died with a will, to a person who applies and is appointed by the court as the administrator of a deceased person’s estate. A person can only be an executor of an estate if they are nominated by the will of the person who died and is otherwise qualified – are over the age of 18 and are not a convicted felon.
It typically takes a few months to get a letter of testamentary. If the probate is contested, i.e. if someone is challenging the will, then getting a letter of testamentary can take years, or they can be potentially denied altogether. Although getting the letters is only one of the steps of the probate process, it is the most important step.
If the person who died did not leave a will, the document will be similar and with similar powers, but it will be called “Letters of Administration,” and the Certificate will be called “Certificate of the Appointment of Administrator.”
If you need assistance from an attorney in obtaining a letter of testamentary, you can call me, Albert Goodwin, Esq., New York estate, guardianship, wills, trust, Medicaid and probate lawyer, at (212) 233-1233 or 212-233-1233.