Has a bank or financial institution told you that you need “Letters Testamentary” or “Letters of Administration” to access the money of a deceased family member or loved one? Or are you set to inherit a piece of real estate or oil/gas/mineral interests, but the title company says you need these letters? How about an undiscovered asset that no one knew about until the owner died?
What are these mysterious “letters,” and how do you get them?
Don’t be misled by the terminology; the “letters” are official court documents produced as part of a probate hearing. In other words, an estate has to go through probate to get Letters Testamentary or Letters of Administration.
I’m the Heir, Why Do I Need These Letters?
The letters tell banks, creditors, and others that you’re the person the Court has placed in charge of the estate. You’ll need to present the letter of testamentary along with the death certificate to show that you have the authority to act on the estate’s behalf.
We encourage our clients to avoid or simplify probate when they draft their estate plans (see our Probate page for estate planning tips to avoid probate altogether). But there are times when a court proceeding is necessary to ensure beneficiaries and heirs receive what was intended.
In the course of a probate hearing, the court designates someone as an Administrator or Executor of the estate. This designation authorizes them to deal with the estate of a deceased person. Then the court issues a certificate specifying that designation: these are the “letters” a bank, title company, etc., needs before they’ll allow you to access any assets or debts of the decedent.
Letters Testamentary vs. Letters of Administration
Letters Testamentary (or sometimes, “Letters of Testamentary”) and Letters of Administration (sometimes called “Letters of Representation”) accomplish the same thing. In either case, the court determines who is authorized to deal with the deceased person’s estate.
The main distinction is whether or not the person who died (the “decedent”) had a will; this will determine whether the court issues Letters Testamentary or Letters of Administration. In either case, it has the effect of conferring authority on an individual to deal with the estate.
Letters testamentary are official documents issued by the court authorizing the Executor to act for the estate. They are proof to others that the Executor has been qualified by the court. This is usually the result of the decedent naming that person in their will.
But what if there was no will or the decedent didn’t name an Executor? In that case, you would seek Letters of Administration.
Letters of Administration
If the decedent died without a will (also known as “dying intestate”), the court will have to name an Administrator. Then, as with Letters Testamentary, the court clerk issues a document certifying that the Administrator has been qualified by the court and has the authority to manage the estate. These are the Letters of Administration.
For decedents who died without a will, the applicant must also have the court determine the proper heirs to the estate. This is known as a “Declaration of Heirship.” An administrator can be appointed before the heirs are determined, but the administrator will not be able to distribute assets until the court determines heirs. In some cases, an applicant can file an application to both obtain Letters of Administration and Declare Heirship. This joint filing can save significant time.
How Do I Get Letters Testamentary or Letters of Administration?
It may feel overwhelming, but the process can be broken down into five broad steps.
How to get Letters Testamentary or Letters of Administration:
- First, file an application for probate.
You’ll need to file with the court in the county in which the decedent died.
- Notify interested parties.
Potential heirs, beneficiaries, and creditors may need to be notified of a probate hearing.
- Appear at a hearing.
The court will schedule hearing to verify the information and make sure you are able to serve and meet state qualifications.
- Be appointed by a judge.
If you were named as the Executor in the will, the court will appoint you and issue Letters Testamentary. Otherwise, it will appoint an Administrator (according to the rules in the section below) and issue Letters of Administration.
- Perform the duties as an Executor or Administrator.
If appointed you’ll be charged with the duties of managing the estate, including distributing assets and repaying debts.
For more information on what probate is and how to deal with the probate process, read our Probate page.
Will the Court Appoint Me, or Someone Else, As the Executor or Administrator?
The simplest scenario is one in which the decedent names an Executor in their will. In that case, so long as the person is qualified (more on this below), the person named will be designated as the Executor of the estate. Letters Testamentary will be issued declaring that is the case.
If there is no will, or if for some reason the decedent died with a will but did not name an Executor, then the court will determine an Administrator according to state law. Any qualified person can be named the Executor or Administrator of an estate, with preference given to spouses, beneficiaries, and next of kin, respectively.
The Texas Young Lawyers Association note the order in which an Administrator is selected.
The Court will grant Letters Testamentary or Letters of Administration to the persons qualified to act, in the following order:
- To the person named as Executor in the Will of the deceased.
- To the surviving spouse.
- To the principal beneficiary of the estate.
- To any beneficiary of the estate.
- To the next of kin of the deceased, the nearest in order of descent first, and so on. (Note the next of kin includes those who have been legally adopted by the deceased.)
- To a creditor of the deceased.
- To any person of good character residing in the county who applies.
- To any other person not disqualified to serve as the personal representative of the Estate.
If you’re applying for Letters of Administration, but there is someone ahead of you, they would need to refuse or be disqualified for you to be appointed as the Administrator.
Certain people or entities are NOT qualified to be the Executor or Administrator of an estate. These include incapacitated persons, convicted felons (unless their rights have been restored), non-residents of the State of Texas (unless they appoint a resident agent to accept service of process), and corporations.
If the decedent named a qualified Executor in their will, that person will be appointed and issued Letters Testamentary. Otherwise, the court will appoint an Administrator and grant Letters of Administration in the order listed above. If you are the surviving spouse, that will most likely be you.
Do I have to go through Probate, or are there Alternatives?
Depending on the situation and the size or type of estate, you may not need to go through probate to gain access to assets or to clear title on property.
If There Is a Last Will and Testament
- Muniment of Title
- Family Settlement Agreement
If There Is No Will
- Small Estate Affidavit
- Affidavit of Heirship
- Family Settlement Agreement
Muniment of Title
If there is a will, and the only reason for going through probate is to clear a title to property, a will can be admitted to probate as a “muniment of title.” This is a simplified method of administering an estate without going through the full and formal probate process. There is no Executor or Administrator appointed. Instead, an order from the judge admitting a will to probate as a muniment of title puts on record the transfer of ownership of the property. This order can be used in place of Letters Testamentary.
Muniment of title is generally only used only when there are no actions that would require the appointment of an Executor or Administrator, such as debts to be paid or other assets to be distributed.
Small Estate Affidavit
The small estate affidavit is a useful alternative to a formal administration in estates where the residence and non-probate assets comprise the majority of the estate and the remaining assets are valued at less than a certain threshold amount.
This is a good way for a spouse or child of someone who has died to take possession of their property and avoid a long probate process. Suppose the value of an estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed the threshold amount. In that case, the heirs can file an affidavit with the court showing that they are entitled to receive the property of the estate. If it is accepted by the court then no formal administration is necessary.
If you file a small estate affidavit, all heirs, family members, or anyone who could be considered entitled to the property must be made aware of the small estate filing. If accepted by the court, the form gives the user power over the decedent’s estate to determine how assets will be managed and distributed to beneficiaries. They are also responsible for repaying any debts left by the deceased.
Will the Court Accept the Affidavit?
As long as the estate meets the following conditions and there are no challenges from other potential heirs or beneficiaries, the court should accept the affidavit.
Conditions for a Small Estate Affidavit:
- All other heirs or beneficiaries must be notified of the estate filing.
- The value of the estate must not exceed a certain value.
- The value of the homestead and exempt personal property is not included in the value threshold.
- Exempt personal property includes items of tangible personal property with a certain threshold per family and per single person.
- The assets of the estate, excluding the homestead and exempt personal property, must not exceed the known liabilities of the estate.
Note that although the small estate affidavit can transfer title to a homestead, that is only the case if the homestead is the only real property in the estate. If the estate contains any real property in addition to the homestead the affidavit will not clear title to any of the real property, including the homestead.
Affidavit of Heirship
An Affidavit of Heirship can be used when someone dies without a will and the estate consists primarily of real property titled in their name. It has the effect of transferring title into the heirs’ names without going through the probate process. To be effective, all heirs must sign the affidavit.
An affidavit of heirship must also be signed by two disinterested witnesses—people who can testify that they knew the deceased and can attest to your claim that there is no other family or spouse that has rights to the premises. Witnesses must not stand to gain from the transfer of the property.
The Affidavit is filed and recorded with deed records in the county where the Decedent’s real property is located and creates a clean chain of title transfer to the Decedent’s heirs.
Family Settlement Agreement
A family settlement agreement (or an informal family settlement) is a way to settle an estate through contract, rather than probate. Essentially, heirs make an agreement amongst themselves as to how the assets will be distributed and then draft a contract that codifies their agreement. These agreements are common, especially when the estate is small and consists only of personal property like personal effects and household furnishings.
A family settlement agreement is also an option when there is a will, but where families and potential beneficiaries disagree about the validity of the will, resulting in a potential will contest. Under Texas law, the beneficiaries of a will may agree among themselves as to the distribution of the property and agree not to probate the will. Therefore an informal family settlement agreement can be used to settle any potential will contest and to clear title to property.
How Can an Attorney Help?
If you’re not sure whether you need letters or how to get them, an estate planning attorney can walk you through your options. It may even be possible to avoid probate altogether. If you still have any questions or aren’t sure which of these situations applies to you, contact Holman Law for a free, straightforward consultation.
Steven C. Holman
Estate Planning and Elder Law Attorney
I love to spend time with my wife and three children and serving the Dallas Fort Worth community. I provide clients with a wealth of knowledge and experience navigating each individual’s Estate Planning needs including Trusts, Probate, Elder Care Law, and Long Term Care Planning. My law firm specializes in assisting clients with complicated legal forms and qualifying for the maximum Medicaid and Veteran (VA) benefits in Texas.