What is a letter of testamentary?

A necessary document for settling a deceased person’s estate

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a senior editor of estate planning at Policygenius in New York City. She has researched and written extensively about wills, trusts, and personal finance since 2019, with an eye towards making difficult (and at times gloomy) topics easy to understand for readers. Her articles and data stories has been cited by the likes of MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

Updated September 13, 2021|4 min read

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When someone dies, a personal representative or executor is responsible for distributing the deceased person’s assets and property to the right beneficiaries and heirs. When someone writes a will, it typically states who their executor is as well as their beneficiaries and what assets they receive.

A letter of testamentary is a court order that gives the executor legal authority over a decedent’s estate, and executors need to get one in order to begin administering it. In some states, letters testamentary may be referred to as letters of authority or a letter of appointment, but they all have the same purpose: to provide proof that someone is really entitled to act as the executor during the course of probate.

Key Takeaways

  • A letter of appointment of the executor is formally known as a letter of testamentary and you can get one from the probate court

  • When there is no will (intestate estates), letters of administration are issued instead

  • The cost of letters testamentary is usually the price of the probate filing fee

Why do I need it?

Executors need to use a letter of testamentary to:

  • Open an estate bank account

  • Close the decedent’s personal bank accounts

  • Sell estate assets

  • Receive estate income

  • Represent the estate in legal disputes

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The executor has many responsibilities during the course of estate administration — like paying debts and taxes and filing a tax return on behalf of the deceased person. They’ll need a letter of testamentary as proof that they are legally authorized to settle the estate whenever they approach a financial institution to conduct business on behalf of the estate. This includes any time they need to access the decedent’s assets, like when they need to close out bank accounts, sell property, or open an estate account. Letters testamentary let others know that you are the fiduciary, or legal representative of the estate with its best interests in mind.

How to get a letter of testamentary

Executors can obtain a letter of testamentary when they initiate a probate proceeding for the deceased person with the probate court in the county where the decedent resided. The general process requires you to file the testator’s original will, a copy of the death certificate, and a probate petition form — which asks basic information about yourself, the testator, and the probate assets. (For smaller estates, you may be able to use a small estate affidavit, which fast-tracks the probate process and usually doesn’t require getting a letter of testamentary.) 

If you’re a named executor, you can get letters testamentary without a lawyer, but if you need help filling out the forms, navigating court, or other legal advice then hiring a probate attorney might be helpful.

Learn how to get a death certificate.

Appointment of executor form 

Legal sites that advertise a letter of appointment of executor usually just give you a form to fill out that isn't truly a legal document in and of itself, since you still have to present to a probate judge for their stamp of approval to make it official. Follow the steps above and find the probate court where the testator died to get started.

Learn more in depth about how to become executor of an estate. 

How long does it take?

Executors may have to wait anywhere from a few weeks to a few months to receive letters testamentary, depending on the court system and state. You may be able to file the forms online, and you may not even need to appear in court depending on your state’s probate law and procedures. 

There can be a delay getting the letter though if a beneficiary or heir opposes the named executor in a will and wants to challenge the appointment in court. (If you want to leave an inheritance for your beneficiaries that won’t get tied up in probate, you may want to consider opening a trust as part of your estate plan.)

Cost of a letter of testamentary

Getting letters testamentary, as we previously mentioned, goes hand in hand with initiating probate — and that comes with a fee. The exact cost varies by state: Some may charge a flat fee, while others typically base the fee on the value of estate, in which case the cost can easily reach the thousands for if the decedent owned a lot of property. The fee may be waived for a small estate that falls under a certain amount. Any fees related to estate administration are typically paid with the estate assets.

Learn more about the cost of probate.

Letter of testamentary vs letter of administration

If the deceased died without a will in place, it means they have died intestate, so the decedent’s assets will be distributed according to state law of intestate succession. Since there is no executor, the probate court will need to appoint an administrator instead, who takes on the same duties as the executor. They will receive letters of administration, instead of testamentary letters, as authorization of their fiduciary duties.  

Learn more about an executor vs administrator

A surviving spouse typically has priority to act as estate administrator, and when there isn’t one the state has laws stipulating who would be up next. The court also grants letters of administration (not a letter of testamentary) when someone dies with a valid will (testate) but fails to appoint an executor in it, or if the named executor declines. If you’re writing a will, make sure you name an executor in it and include a back up.

See also: The difference between testate and intestate