What is a letter of testamentary?

An executor must file with the probate clerk to legally administer a deceased person’s estate.

Elissa

Elissa Suh

Published July 16, 2019

KEY TAKEAWAYS

  • Letters testamentary is a legal document issued by the clerk’s office

  • It must be obtained by the executor of the estate as part of the probate process

  • Estate administration is the executor’s main duty

  • If there is no will, letters of administration are issued instead

Upon your death, someone must distribute your assets and property to your beneficiaries. A will designates not only what assets are distributed and to whom, but the person responsible for distributing them — this is the executor of the estate.

Also known as the personal representative, the executor has many responsibilities — like paying debts and filing a tax return on behalf of the deceased person (decedent) — and needs legal proof of their authority over the entirety of the deceased’s property and assets. That’s where a letter of testamentary (or letters testamentary) comes in. This court-issued document authorizes the executor to act as the legal representative of the decedent’s estate.

In this article:

How to get a letter of testamentary

The letter of testamentary, also called letters testamentary, is one of the first steps to probate, or the process of legally proving a will. After this is done, the executor can complete his duties, the most significant of which is the distribution of estate assets, as described in the deceased person's will. The executor will make sure the assets are given to the proper heirs or transferred (poured over) into a testamentary trust if that’s what the will dictates. They do not need to distribute non-probate assets, like retirement savings or a life insurance policy.

(You can read more about how life insurance works with wills and trusts here.)

The process of obtaining the document may vary slightly from state to state, but here are the general guidelines:

  • Find the local probate court or surrogate’s court, as it’s sometimes called. (In some states, like North Carolina, you’ll have to go to the superior court.)
  • File the will and a certified copy of the testator’s death certificate.
  • Fill out the necessary paperwork, like a petition form, and provide any additional documents. (If the estate is small in size, the executor can file a small estate affidavit, which fast-tracks the probate process.)

How long it takes to get the letter of testamentary depends on the state, from a few weeks to a few months. The court will set a hearing date, during which it’ll make sure that the potential executor has met all the qualifications. To serve as executor, nearly all states require mental competency, in addition to other criteria based on age and criminal history. For example, a New York court will not permit a former felon to serve as executor.

Obtaining letters testamentary can be further delayed if any potential heirs decide to contest the will of the deceased.

Cost of a letter of testamentary

Filing a petition with the court comes with a fee. The filing fee for letters testamentary may cost a few hundred dollars, depending on the size of the estate and where the court is located. The fee can easily reach the thousands for larger estates (like those valued over $500,000), and the fee may be waived for a small estate that falls under a certain amount. If you are using a probate attorney, they may include the filing fee as part of their own attorney’s fees.

You may also need more than one copy of the letter of testamentary, since it will be requested by both financial institutions and government agencies. This might cost a few dollars per copy.

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Letters testamentary vs letters of administration

If the deceased died without a valid will in place, it means they have died intestate without leaving any heirs. The estate will be distributed according to the state laws of intestate succession. Since there is no executor, the probate court will appoint an administrator, who virtually takes on the same duties, and issue him or her letters of administration as legal proof of their new role.

The administrator is typically the surviving spouse if there is one, or next of kin, but each state has their own set of rules determining who will distribute the assets and maintain the estate of the decedent if they left no will. Someone can also volunteer to become the administrator by filing a petition with the register of wills at the probate court.

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