Letters testamentary is a term used to describe a legal document granted to an executor by the court as part of the probate of a deceased person's estate. Letters testamentary may also be referred to as a certificate or court document proving the authority of an executor to administer an estate. If you are named as executor in a decedent's last will, you may need to request letters testamentary from the court when the estate is submitted for probate. A
probate lawyer can advise you on the proper procedures for petitioning the court for letters testamentary or otherwise obtaining authorization to perform the duties of executor.
Requirements to Obtain Letters Testamentary
Letters testamentary are generally issued after the will has been proved, recorded, allowed or admitted for
probate. In order to have letters testamentary issued, an individual seeking to be appointed executor may need to meet several requirements. Depending on the provisions of the will, state law, and the requirements of the court, these may include the following:1. An executor typically must be at least 18 years of age.2. The executor may need to post a bond if required. See How to Post an Executor’s Bond in Probate.3. The person must possess the required qualifications to be executor. In some cases, a court may find grounds to deny a petition for letters testamentary. For example, if the court finds the person to be of unsound mind, unfit or unsuitable to administer the estate, the court may not grant letters testamentary. There may be other grounds to disqualify an executor as well.4. The state may have residency requirements for executors. If a person is appointed executor as a nonresident, additional requirements may need to be met, such as those for service of process.5. The individual must formally accept appointment as executor. The executor may be required to take an oath, make a written statement or complete certain paperwork.The specific requirements to obtain letters testamentary are different from state to state. Consult a lawyer familiar with probate procedures in the state where the decedent's estate is being administered for more information.
Note: This article provides a general overview of the use of letters testamentary in the probate of estates in the United States. Because there are substantial differences in the laws throughout the United States and probate procedures vary depending on the court, the information outlined above may not apply to your unique circumstances.
What is in a Letters Testamentary Form?
The exact form of letters testamentary varies from state to state, depending on the provisions of state law. Letters testamentary issued by a court to an executor typically include the following information:1. The state and county in which the decedent's estate is subject to probate.2. The name of the deceased testator.3. The deceased testator's date of death.
4. The name and address of the person authorized to be executor of the estate.5. The name and signature of the probate court judge issuing the letters testamentary.6. The date on which the letters testamentary are granted.To find state statutes that govern the probate process in a particular state, go to our state laws page.
Who Can Get Letters Testamentary?
Letters testamentary are usually granted to the person named as executor in a valid will if such person is qualified. However, other interested persons who meet the requirements to be executor may also petition the court for authorization to administer the estate. For example, if the person named as executor in the will is not qualified to serve or does not want to serve, another executor may be appointed.
Forms Required to Probate an Estate
If you are going to be the executor, personal representative or administrator of a decedent's estate, you will need to quickly become familiar with the paperwork, documents, and forms used in estate administration. For a list of forms you may need to complete for probate, see our page on how to
Probate an Estate.
Letters of Administration
Letters testamentary are not always issued when an estate goes through probate. Other types of letters may be issued instead. If the deceased person did not leave a valid will, referred to as dying intestate, the probate court may issue letters of administration to an administrator of the estate.Also, if the individual nominated in the will is unwilling, unable or unqualified to serve as executor, the court may issue letters of administration to another person or entity to settle the estate.
Many estates are not subject to probate because the value of assets owned by the decedent is below a certain dollar amount specified in state law. This is known as the small estates exception. If an estate does not go through the formal probate process, letters testamentary typically will not be issued. Instead, the estate will be administered according to the procedures for small estates. For an overview, see
probate of small estates.
Funeral Expenses and Letters Testamentary
Funeral services, burial, cremation, and other matters relating to disposition of remains usually must be arranged before an executor is appointed or letters testamentary are granted. The laws regarding executor powers vary from state to state. Some state laws permit the executor named in a decedent's will to pay for the funeral, burial, and other final arrangements for the deceased prior to the issuance of letters testamentary. Consult an attorney regarding limitations on the payment of funeral expenses.
Estate Administration Forms
Pennyborn.com features several free forms for executors. For a list of forms used to settle an estate, including an executor checklist, estate distribution letter, estate property form, and probate forms, go to
Executors Estate Forms.