How To Obtain Letters Of Testamentary
Many people who have been named in a Last Will and Testament (will) to serve as executor of someone’s estate mistakenly believe that they will automatically be allowed to perform their duties when the person who wrote the will passes away. However, the executor needs to obtain letters of testamentary from the probate court in order to have the power to settle the deceased person’s estate. If you were named as executor in someone’s will, you may be easily confused and overwhelmed as you determine what to do next when that person dies.
What Is a Letter of Testamentary?
A letter of testamentary is an official legal document issued by the probate court to the person named to act as the executor or personal representative of someone’s estate. Letters of testamentary enforce the terms of the deceased person’s will and permit the executor to start the estate administration process. Once a letter of testamentary is issued, the executor is officially authorized to manage the deceased person’s estate and possessions as instructed in the will, including distributing assets to rightful heirs.
Letters of Testamentary vs. Letters of Administration
The terms “letters of testamentary” and “letters of administration” are often used interchangeably, but these two documents are not the same. While both documents serve to put someone in charge of managing a deceased person’s estate, they refer to different kinds of appointments. When the decedent leaves behind a will that names an executor of the estate, the probate court will issue a letter of testamentary to grant the named person the authority to act as the executor. However, if the decedent dies without a will, the probate court will be tasked with deciding who will serve as the administrator of the estate and, once the final decision is made, issue a letter of administration to the appointed person. A letter of administration affords the same authority as a letter of testamentary.
Obtaining a Letter of Testamentary in Florida
In many states, the terms “letters of testamentary” and “letters of administration” convey different powers, as discussed above. However, there is no difference under Florida law, as the state uses just one term: letters of administration. The first step in the process of obtaining the letters is for the executor to go to court and file the decedent’s will and death certificate. Without the death certificate, the court will not issue the letter.
According to the Florida Bar, judges have the authority to decide whether the person named as executor of an estate is qualified to serve in that position. In some cases, the executor may be required to prove his or her ability to serve before being permitted to proceed. Once the judge concludes that the person is qualified, the court will issue a letter of administration, which marks the beginning of the formal administration process.
Obtaining a Letter of Testamentary in Minnesota
The process of getting a letter of testamentary in Minnesota is slightly more complicated than in Florida. Under Minn. Stat. § 524.3-103, the estate administration is commenced when the personal representative is issued the letters. The exact process of obtaining letters of testamentary in Minnesota varies from one county to another. In some counties, the executor may be allowed to file the necessary paperwork, make proper notice, and then use the proof of publication before the court issues the letters.
However, other counties may require an Affidavit of Publication, which may prolong the process since the executor will have to wait several weeks to get proof that the public notice was published in the newspaper. Once the Affidavit of Publication is filed with the court, the court will issue a letter of testamentary.
Do You Need a Letter of Testamentary If There Is No Will?
If a person dies intestate, which is the legal term for dying without a will, there will be no need to obtain a letter of testamentary. While one of the decedent’s family members may be authorized to administer the estate, the process will require an extra step. The probate judge in the proper jurisdiction must appoint a person to be the administrator of the estate. The judge will then provide a letter of administration to the appointed administrator to grant him or her the legal authority to perform the duties necessary to settle the estate. Typically, probate judges appoint either the decedent’s spouse or adult child to serve as the estate administrator.
How Attorneys Can Help Executors Obtain Letters of Testamentary
Navigating the estate administration process can be quite overwhelming. Therefore, many executors choose to contact an attorney for help obtaining letters of testamentary and ensuring that they are taking the proper steps and meeting all applicable deadlines. Serving as the executor of someone’s estate requires more than just getting a letter of testamentary. The executor must provide proper notice to family members, beneficiaries, and creditors. When executors make mistakes during this step, the executor may face personal liability. For example, if an executor does not notify a creditor who was owed $10,000 by the deceased person, that creditor could sue the executor personally to recover the $10,000 if the estate assets have already been distributed to the beneficiaries.
Avoid Probate by Using a Trust
As you can see, whether the decedent passed without a will or with one, administering the estate requires the probate court. If you want to avoid probate, a trust can be created and funded while you are alive. Then upon your passing, your successor trustee or trustees, you can name more than one, can step in and immediately begin to pay bills and administer your estate. It is the ability to avoid probate, with its costs and delays, that makes trusts such an appealing option and why a large percentage pf people choose to use one rather than relying solely on a will.
Contact an Estate Planning Attorney for Professional Guidance
Obtaining letters of testamentary can be a complicated process. If you were named or appointed to act as the executor of a deceased person’s estate, you will need the letters to begin the formal administration process.
If you are interested in getting a comprehensive plan in place, or updating an existing one, to allow your family to avoid probate, give us a call today at either our Minnetonka, MN office at (763) 420-5087 or our Venice, FL office at (941) 909-4644 or fill out the contact form on this page and a member of our team will reach out to you.
If you are not yet ready to put a plan in place and would like additional information, we have a couple of resources for you.
If you would like to learn how to make it as easy and inexpensive as possible for your family to manage your affairs during incapacity and after passing, while ensuring your assets only go to whom you want and how you want, click here to register for our FREE online masterclass.
And, if you would like to learn how to protect your home and life savings from long-term care and nursing home costs, click here to download our FREE guide Save our Home: How to Protect Your Home and Life Savings From Long-Term Care and Nursing Home Costs.