Letters Testamentary are NOT just something you can simply visit with an attorney to get.
They are not what the average person thinks – a letter from one person to another. Letters Testamentary is an official court document you present to a third-party, like a bank or a financial institution, showing you have authority to take control of and manage deceased’s assets subject to probate.
Most third parties, such as banks and financial institutions, use the words “Letters Testamentary” generally to mean you must present to them “a document” proving you have authority on behalf of the estate of a deceased person to ask questions and take possession of a property of a deceased. That document is commonly known as Letters Testamentary. In the legal world, Letters Testamentary have a specific meaning – the deceased died with a Last Will and Testament. In other words, the deceased died “testate.” Someone who died without a Last Will and Testament, died “intestate.” In such cases, ultimately the Probate Court will order Letters Administration be issued. For purposes of this blog post, Letters Testamentary and Administration will be referred hereafter simply as “Letters.”
Letters are issued only pursuant to a probate court order. An order is issued only after the applicable individual meets minimum state requirements like the person has a right to serve as a personal representative, is 18 years or order, not a drunk, nor convicted of a felony. You must file with the probate court formal papers such as a petition or motion saying the petitioner meets basic requirements, usually pursuant to applicable state statutes. Depending upon whether any objection is filed, the probate court will either order Letters be issued, or deny the petition.
People typically ask why are Letters required when the deceased’s Last Will and Testament says the individual is to be the executor – isn’t the person named in the will automatically have a right to take control? In short, NO. A close read of the will usually uses the word “nominates,” or “I designates” or similar language. Even if the deceased’s wills says something like “I designate or appoint” does not mean automatically the person becomes a personal representative or executor. Whoever is named must still pass minimal statutory requirements of the applicable state.
The overall issue people are frequently mistaken or do not know about, like in the high 90s percent, is a Last Will and Testament does not take effect until after the death of the testator (aka the deceased) and the applicable court finds the will valid. A last will and testament is executed on a certain date during the life of the testator (the deceased when living). Then the will becomes effective only when a court, sitting in probate, says / orders the will is effective. Then the person nominated in the will must prove s/he is qualified to serve as personal representative / executor. Only once the court finds the last will and testament is valid and the individual nominated therein meets the applicable state’s requirements, will the court orders Letters be issued. In Nevada, the Probate Court will issue an order to the Clerk of the Court (the department of the Court that carries out certain orders, and manages and maintains the Court’s records and documents) to issue Letters. So, technically, the Clerk of the Court issues the Letters; not an attorney and not the Probate Court. Only when the Clerk of the Court issues letters will the person nominated in the Last Will and Testament have authority to gather and manage the assets of the deceased. Letters is usually a one or two page document containing the Clerk of the Court’s file stamp and signature and the signature of the nominated person in the will. Once all signature are present and file stamped (and sometimes certified copy markings), it can be presented to third parties such as banks and financial houses, another other third parties in possession of property of the deceased. The person possessing properly issued Letters has the authority to demand transfer from third parties of property of the deceased. S/he also has a right to possess property of the deceased and to expend the property in the administration of the probate estate.
Ultimately, after paying the deceased’s last debts and administration expenses (like burial, appraisals, court costs, accounting fees, tax preparation fees, legal fees, and payment of taxes, etc.), can the Probate Court be petitioned for an order of distribution to the devisees (a person named in a Last Will and Testament).
As hinted to above, Letters Administration are the same thing as Letters Testamentary with one main exception – the deceased died without a will. In such case, Nevada law has a statute designating who may serve (usually heirs like a spouse, children, parents, and siblings) as a personal representative. The individual petitioning to serve as a personal representative still has to meet minimal state statute requirements. Once the Letters Administration are issued, the person to whom are issued has essentially the same authority as a person possessing Letters Testamentary. The differences between Letters Testamentary and Administration are a result in what the applicable Last Will and Testament provides and what the state statute says. The differences are outside of the scope of this blog post and thus are not helpful to the reader. Anyway, a discussion of the differences will only show the author is pedantic and boring.
In the end, the Letters Testamentary are a result of the applicable Probate Court ordering a court clerk to issue a document proving a designated person therein has authority to act on behalf of an estate. Letters Testamentary are not something an attorney can just write, give to you, and off you go. Court is always involved, thus procedures must be followed.
Kirk D. Kaplan, Esq., CPA, the author, has over 25 years in helping people administer estates to wind down the financial affairs of loved ones, and over 35 years as an expert CPA in assisting personal representatives in providing the Probate Court and heirs accountings and preparing income taxes.