What does Letters Testamentary mean? This term may seem foreign to you, but it’s actually one of the more basic estate planning documents. Let’s take a closer look at Letters Testamentary, why they’re necessary, and how to obtain them in Texas brought to you by Holman Law.
Letters Testamentary/Letters of Administration: What Is It?
In order to better understand Letters Testamentary and their necessity, we should first take a look at the broader process known as Probate. Probate is the legal process by which a deceased person’s assets are identified, their outstanding debts are paid, and their beneficiaries and heirs receive the remaining assets. Letters Testamentary, similar to Letters of Administration, is a probate court-issued document which authorizes a person to act as an executor or administrator of an estate. This Court Order gives the executor the authority to distribute the estate appropriately pursuant to the decedent’s wishes.
Who Needs It and Why?
Letters Testamentary are needed by anyone who is trying to settle a decedent’s estate, which can include paying the decedent’s creditors, and distributing the estate’s assets to heirs and beneficiaries. For example, if someone dies leaving money in their bank account without a beneficiary designation, the bank will not release the funds from the account without Letters Testamentary. Again, these Letters are issued by a court order which gives the executor or administrator the authority to control the estate’s assets, and the bank may then act upon the executor’s instructions. Another example would be what happens to a decedent’s residence when they die. If a decedent had a will and the home was to be passed to beneficiaries, Letters Testamentary would provide the executor the authority to transfer the property in accordance with the will’s instructions. Or, if the will specified that the home was to be sold and the proceeds distributed to the beneficiaries named in the will, Letters Testamentary would provide authority to sell the property and distribute the proceeds.
Probate Vs. Non-Probate Assets
A person’s assets without named beneficiaries or direct distribution instructions are subject to probate upon the person’s death. In other words, they are considered ‘probate assets’. Any such assets will be distributed pursuant to the instructions of the decedent’s will, or if there is no will, the Court determines the distribution of assets according to Texas law. Examples of assets that would be subject to probate are houses and other real estate, jewelry and other valuables, and funds held in bank savings or checking accounts. However, not all of a decedent’s assets have to be included in the probate process, and can bypass probate if a named beneficiary is part of the account type or asset. These are known as ‘non-probate assets’. Common examples of non-probate assets are life insurance policies, annuities, retirement accounts such as IRAs, and assets that are held in trust. Upon the decedent’s death, non-probate assets are distributed directly to the named beneficiaries, thereby bypassing the probate process.
How To Obtain Letters Testamentary in Texas
To obtain Letters Testamentary in Texas, an eligible person must petition or apply to the appropriate probate court, which is located in the county in which the decedent resided. In order to petition the Court, one must submit an application and the original Will of the Testator, or decedent, within four years from the date of death. The Will provided to the Court will have to be proven to be the Testator’s final will. The probate court will require that a notice be posted for two weeks after the application is submitted. This notice period allows anyone who wishes to contest the will to come forward. If no one contests the will, the matter can move forward with a hearing. The time it takes to obtain Letters Testamentary in Texas varies depending on the accuracy and completeness of the documents submitted to Probate Court, the Court’s availability, and the complexity of the estate administration. If the decedent had no will, an interested person in the Decedent’s estate can still file an application with the court to obtain Letters of Administration. Letters of Administration provide similar authority as Letters Testamentary.
Choose the Right Estate Planning Attorney
If you need help obtaining Letters Testamentary, need legal representation in any area of probate law, or need help with your own estate planning, including how to avoid probate, contact the Holman Law Firm in Dallas, Texas. Our top-rated attorneys are experts who specialize in probate law and estate planning. Call us today for your free consultation at 972-474-7828.
We had a will. My sister was POA. Untimely, she passed before our mother then 2 months later our mother passed. My other sister is secondary executor. We called will att. He wants to charge us $3000 to make a letter of testamentary just to access thr bank accts that do not have my sister on as a beneficiary . We had no time to do it! or mother was dying. Advice?
Hi Henrietta, Thank you for your question. Letters Testamentary are required to access a Decedent’s property that do not have a beneficiary named. These letters are obtained through probating the will in Court. The will is not valid and your sister cannot be appointed executor without a court proceeding. While unlikely, your other option is to talk with the bank and see if they will accept something other than Letters Testamentary.