When a loved one passes away, managing their estate can be a daunting task. As you quickly discover, this task will require a legal authorization in the form of Letters Testamentary. But what exactly are these Letters, and why are they so important? As an executor of an estate, how do you apply for them, and what can you do with them once you have them?
If you find yourself grappling with these and other questions about Letters Testamentary, you’ve come to the right place. In this comprehensive guide, we answer your questions about everything you need to know about this crucial legal document. Let’s dive in.
Table of Contents
What are Letters Testamentary?
Letters Testamentary are a certificate issued by the court. They certify that a person is authorized to act on behalf of the estate of the decedent. The Letters are an official government document. Individuals and organizations are legally required to honor the Letters Testamentary and the executor’s authority to act on behalf of the estate.
In New York, the court that issues Letters Testamentary is the Surrogate’s Court, and the legal representative of the estate is called executor.
You can only get Letters Testamentary if you are named as the executor in the will of the decedent, and only after the Surrogate’s Court completes the process of verifying the will as being valid and genuine.
Letters Testamentary authorize the executor to gather the assets of the estate, pay the debts of the estate and disburse the remainder to the beneficiaries of the will, as well as to carry out many other actions on behalf of the estate.
Here is a redacted image of the typical Letters Testamentary obtained from the court by our law firm:
They are not letters but a court decree
Despite its name, the so-called Letters Testamentary are not actually letters. They are a court decree, or an official order and certificate issued by a court. This confusing name is a result of old language usage, where court decrees were called letters. The name stuck, but make no mistake – this is a legal document issued by a court of law, not a casual correspondence.
This document is not a letter, no one can write it for you. A lawyer cannot write one, and no one at the court can write one. It is a decree that has to be generated by the clerks of the court and signed by the judge, just like any other court order. Even though a lawyer cannot write letters testamentary, a lawyer can help you obtain them from the court.
The correct term is “Letters Testamentary”
The document is always called “Letters Testamentary,” even when you’re dealing with just one. So you never say “Letter of Testamentary,” only “Letters Testamentary,” even if there is just one of them.
What Can you Do With Letters Testamentary?
As the executor of an estate, the Letters Testamentary allow you to:
- Obtain a tax id number for an estate from the federal government
- Open an estate bank account
- Request information from banks and other institutions that control the decedent’s assets.
- Transfer assets from the decedent’s name to the name of the estate
- Pay debts of the decedent
- Collect claims of the decedent
- Gather or assemble the estate’s assets
- Distribute the estate assets to the beneficiaries of the estate, after obtaining proper waivers or providing an accounting.
Why are Letters Testamentary Important?
Without Letters Testamentary, you cannot act as the executor of an estate. Banks will not release information or transfer assets, county recorders will not record property deeds, and potential property buyers will not buy the property. Only with the court-issued Letters Testamentary can you collect the estate’s assets, pay its debts and expenses, and distribute the remaining assets to the estate’s beneficiaries. Although getting the Letters is only one of the steps of the New York probate process, it is the most important step.
Who Can Apply for Letters Testamentary?
You can only apply for Letters Testamentary if the deceased person’s will named you and you meet other qualifications, like being over 18 and not having a felony conviction.
How Do I Get Letters Testamentary?
To get Letters Testamentary, you need to submit an application with the required documentation to the probate court of the county where the decedent lived and follow the probate process.
Where Do I Get Letters Testamentary?
Letters Testamentary are issued by a probate court in the county where the decedent lived. In New York, the probate court is called the Surrogate’s Court. Each borough has a separate one, as well as each county outside of New York City.
The county where the decedent lived is not necessarily the county where they died. For example, if someone died in a hospital in a Long Island but lived in Queens, their estate will still be handled by the Queens Surrogate’s Court.
What Documents You Will Need to File
In order to get letters testamentary, you need to submit a petition for probate together with its supporting documents to the Surrogate’s Court. You will also need to provide the original last will and testament of the decedent and the original death certificate and submit a number of other documents to the court.
This is where an estate attorney can be of invaluable assistance, helping you gather necessary documents and representing you in court. Your attorney will gather and draft all the documents for you, such as:
- Petition for probate
- The probate petition will require information about the decedent, the executor, beneficiaries of the will, close of kin of the decedent, size of the estate,
- An estimate of the gross estate of the decedent passing by will, separately showing the values of personal and real property, gross rents for a period of 18 months, and information about any cause of action for personal injury or death
- Original death certificate
- Original will
- Do not unstaple even if you are scanning it.
- Affidavit of Comparison
- Executed by a disinterested person stating that they have reviewed a copy of the will and that it is the same as the original will being submitted
- May be waived by the court
- Waiver of Process, Consent to Probate
- Executed by the heirs of the decedent – those who stand to inherit if there was no will
- Heirs still need to execute this document, even if they are excluded/omitted from the will and not listed as a beneficiary
- If you cannot get waivers from all the heirs, you will need to get a citation from the court.
- Issued by the court to those heirs who do not execute waivers
- Notice of Probate
- Issued to all beneficiaries listed in the will
- Filing fee
- Ranging from $215 to $1250 depending on the size of the estate
- The exact fee can be computed by cross-referencing Surrogate’s Court Procedure Act § 2402
- Proposed Decree
- Proposed order to be signed by the Surrogate, granting the nominated executor Letters Testamentary
- Affidavit of Heirship
- An affidavit of heirship needs to be executed by a disinterested person when the decedent was survived by no heir, one heir, or where the surviving heirs are related to the decedent through a person who is also deceased.
- Family Tree
Make sure that you submit a complete set of documents to the court. Failure to submit complete documents will result to delays in the issuance of Letters Testamentary. With delay, you will not be able to immediately perform your duties as executor and you cannot marshall and collect the assets of the decedent. You will not be able to take hold of bank accounts or sell real estate belonging to decedent.
There may also be other documents involved. An attorney will also appear in court on your behalf, either in person or through a videoconference. Your attorney will also arrange to send out all the required notices, and follow up with the court to make sure that the process continues without unneeded delays.
Although a petition for probate can be done pro se (by yourself), delay may ensue in the issuance of letters testamentary, especially when the documents you submit are not complete. Although we have outlined the main documents required, the court may require additional documents depending on the circumstances of each case.
What are the Other Requirements
Before the court issues Letters Testamentary, it checks that you’re named as the executor in the will and that the will is genuine. You will also need to send notices to the relatives of the deceased person even if they are not named in the will. And you will need to send notices to other people mentioned in the will. Alternatively, you can just obtain their signed waivers and consents.
How Long Does it Take to Get Letters Testamentary?
How long it would take to get Letters Testamentary depends on what part of New York you are in.
Upstate New York, it can take less than a month.
In New York City, the process can take a few months or even over a year due to the large number of cases that the courts handle, causing processing times to be longer and courts to be backed up. For a typical county in New York City, it takes a few weeks just to get to your packet and review it. If the packet needs corrections, and it often does, it will take the probate department even more time to suggest the corrections and to review them once you make the changes. And this is just when the process is routine. If the case has complications, the processing can take even more time.
If the probate is contested, i.e. if someone is challenging the will, then getting Letter Testamentary can take years, or they can be potentially denied altogether.
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.”
Will I Need More than One Letters Testamentary?
You will often need more than one, since each bank and government agency would require an original. Also, some institutions require a more official looking document. But the court only issues one original. So what do you do when you need to provide an original in more than one place?
If you need more, you can order Certificates of Appointment of Executor from the cashier’s department of the Surrogate’s Court. Each one costs a small fee of six dollars.”
The Certificates are printed on a watermarked blue and red paper, and look similar to a death certificate, birth certificate or marriage certificate. Here is a redacted image of a Certificate of Appointment of Executor obtained by our law firm:
Do Letters Testamentary Expire?
Typically, Letters Testamentary in New York do not expire. But look closely the text. Preliminary or Temporary Letters Testamentary can expire. And a Certificate of Letters Testamentary has to be renewed every six months.
How Do Preliminary Letters Testamentary Work?
How to Get Preliminary Letters Testamentary
When you think there’s going to be delay in the issuance of Letters Testamentary, you can request for Preliminary Letters Testamentary (also called Temporary Letters). The issuance of Preliminary Letters Testamentary allows you to do the following things, except to distribute assets to the beneficiaries:
- Collect all assets, including bank and brokerage accounts
- Pay taxes and debts of the estate
- Sell real property that has not been given to a particular beneficiary in the will
When Can You get Preliminary Letters Testamentary
Examples of situations where you can get Preliminary Letters Testamentary:
- When the estate will suffer imminent damage if letters testamentary are not issued, e., there is a foreclosure sale or debts have to be immediately paid (otherwise, penalties will be imposed)
- An excluded heir contests the probate of the will, which could delay administration of the estate for months to years
- You need to file a lawsuit on behalf of the estate before the statute of limitations to file the claim expires
The person who usually files an application for Preliminary Letters Testamentary is the nominated executor of the will.
What if the Decedent Did Not Live in New York?
If the decedent died in a different state, and you have Letters Testamentary from that state, you will still need to obtain separate Letters Testamentary in the state of New York, by verifying out-of-state Letters in the state of New York through an ancillary probate proceeding. The Letters you get this way are called Ancillary Letters Testamentary.
What if There is no Will?
If the decedent did not leave a will, the court will issue a similar document known as the “Letters of Administration”.
In conclusion, Letters Testamentary play an essential role in estate management following a loved one’s demise. These legal documents, issued by the Surrogate’s Court, empower the executor to execute the decedent’s will and carry out all necessary activities, from obtaining a tax ID number for the estate to distributing the estate’s assets to beneficiaries. It’s vital to remember that acquiring Letters Testamentary involves a process, often requiring the assistance of an experienced estate attorney. And while the process may take time, particularly in populous regions like New York City, this process is crucial to ensuring the transition of the decedent’s assets.
If you need assistance with obtaining Letters Testamentary and navigating the New York probate process, we at the Law Offices of Albert Goodwin here for you. With offices in New York, NY, Brooklyn, NY, and Queens, NY, we are easily reachable. Feel free to call us at 718-509-9774 or send us an email at email@example.com.