Anna lives in upstate New York. She is the only child of her recently deceased mother. Her father died nearly a decade ago. Anna is the executor of her mother’s estate. She recently made an appointment at her local bank to access her mother’s account. The bank representative said that she could not have access to the accounts without letters of testamentary.

Letters of testamentary are formal legal documents issued by the probate court that authorize the executor of a will to administer the decedent’s estate. Letters of testamentary give the executor the legal authority to manage the estate, including paying debts and taxes and distributing assets to the heirs.

How do you get letters of testamentary?

If the decedent has a will, the original will must be filed with the probate court in the surrogate’s court, along with a valid death certificate and the executor’s identifying information. Since each county has its own surrogate court, it is important to file the will in the county in which the decedent lived or had assets. Other courts will not accept it.

When determining which surrogate’s court to file a will in, consider where the decedent lived (their county and state of domicile), not where they died.

The probate court official will review the will to determine whether it

• Expresses the decedent’s last wishes
• Complies with New York law (if the decedent lived in or owned property in New York)
• Was executed without the exertion of undue influence or duress

The probate court will also need to verify that all the heirs have been notified by the executor and given the opportunity to contest the will.

A probate court can only give letters of testamentary to the executor of a will. In New York, a person seeking letters of testamentary as an executor must prove their eligibility as governed by the Surrogate’s Court Procedure Act.

Since Anna’s mother had a will, the next step was for Anna to file the will with the probate court in the surrogate’s court in the county where her mother lived and owned property. The probate court will verify the will and the probate documents Anna will be asked to complete.

Once this process is complete, Anna will get a letter of testamentary that lists the name of the decedent, the date of death, the name and location of the court, the file number, the name and mailing address of the executor, the date of issuance of the document, the name, seal, and signature of the clerk of probate court who issued the letter, and any limitations.

What if there is no will?

If a decedent dies without a will (intestate), the probate court will appoint an administrator to manage the estate. Letters of administration are official court documents that grant an individual the authority to manage and administer the estate of someone who died without a will.

The appointed administrator will have the same responsibilities as an executor of a will. They will pay debts and taxes and distribute assets to the designated heirs.

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

Letters of testamentary and letters of administration serve the same purpose. They authorize a personal representative (executor or administrator) to act on behalf of an estate. These letters provide the authority to access accounts, sell real estate, pay taxes, and distribute assets to the beneficiaries.

When a person dies with a will and has appointed an executor, letters of testamentary are used to grant them authority. When there is no will and an administrator is appointed, authority is delegated through letters of administration.

When do you need letters of testamentary in New York?

Letters of testamentary are commonly required 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

Without letters of testamentary, an executor is not authorized to act on behalf of an estate.

Letters of testamentary: Points to consider

If a decedent owns assets in two or more states, an estate must be opened in the relevant probate court in each state. The probate process can become burdensome for the executor. If you are the executor of an estate or are currently creating an estate plan, an estate planning attorney can assist you in navigating the process and avoiding common mistakes that can cause delays.

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.