The probate court issues letters of testamentary approving an executor of a will to manage the decedent’s estate.

But what happens if someone dies without a will, also known as dying intestate? The surrogate or probate court uses letters of administration to authorize a person known as the administrator to manage the decedent’s estate. A New York estate planning attorney can explain and further differentiate these two documents.

When do you need a letter of administration?

A letter of administration is needed in the following circumstances:

• A person has died without having a valid will in place.
• A deceased person has a valid will but did not name an executor.
• A deceased person has a will, but the court has deemed the will invalid.

In these cases, the probate court will appoint an administrator. State next-of-kin laws are usually applied when choosing an administrator. Typically, an immediate family member, such as a spouse or an adult child, is chosen as an administrator.

How do you get letters of administration?

Dying without having an estate plan in place is more common than you might think. According to an AARP survey, 60% of U.S. adults do not have a will in place.

When a person dies, and they have not written a last will and testament to specify how their estate should be distributed, New York and other state laws and procedures will be used to determine how the decedent’s estate will be distributed. The process of distributing an estate without a will begins with appointing an administrator to oversee the management and distribution of the estate.

Letters of administration are issued by the probate court to grant someone the authority to act as an estate administrator. These are the typical steps needed to get letters of administration:

• Gather important documents such as the original death certificate, proof of all financial accounts and investments, copies of insurance policies, property titles, and any creditor statements. You will also need the names and addresses of next of kin.
• File an application with the probate court to be appointed administrator. In most cases, you will need to be at least 18 years of age, a U.S. citizen, and not have a felony record.
• Attend a hearing at which the probate judge reviews your application.
• If approval is granted, receive letters of administration granting your legal authority to administer the estate.

Once an administrator has been appointed, they must distribute the estate assets according to state intestacy laws.

What’s the difference between letters of administration and letters of testamentary?

The primary difference between letters of administration and testamentary is who is being appointed. If a valid will is in place with a named executor, then letters of testamentary are used to approve the executor. If there is no valid will or no valid executor of a will, then letters of administration are used instead.

When do you need letters of administration?

Letters of administration are commonly required when a person has died without a will for the following activities:

• Filing a tax return for the decedent
• Investigating medical records or finances
• Liquidating bank accounts and life insurance policies
• Retrieving assets from unclaimed funds
• Selling real estate
• Starting a personal injury lawsuit
• Starting a wrongful death action
• Transferring real estate via deed to heirs
• Transferring shares of a co-op to an heir or selling the co-op

How long does it take to get letters of administration?

It takes between six and eight weeks to obtain a letter of administration. It can take longer if any of the necessary documents are missing. Because the processing time can be lengthy, it is a good idea to apply for letters of administration as soon as possible after a death.

Letters of Administration Without a Will: Points to consider

When a person dies without leaving a will, it can be difficult for their beneficiaries to access their assets without applying for a letter of administration from the probate court. The court typically uses next-of-kin laws to determine who will be named as an administrator.

Some challenges associated with getting a letter of administration without a will include proving that no will exists and that you have a legitimate claim to the estate.

Speak to a trusted advisor to help you develop your estate plan. Contact us and schedule a call with us at 855.631.3457 to learn more about how to protect those most important to you.