Letter of Testamentary: Explained

Experiencing bereavement is always challenging, but it can become more difficult if the person who died named you as their executor. However, understanding what documents you need to act can make the process significantly less stressful. 

A letter of testamentary is one of the documents you'll need to obtain if you're a named executor. Below, you can find out what a letter of testamentary is, how to get one and how much it costs. 

What Is a Letter of Testamentary?

A letter of testamentary is a court order that proves your right to act as executor after someone dies. The executor distributes assets to any beneficiaries in accordance with the person's will and assumes authority over their estate. They may also need to settle the deceased person's finances before distributing any inheritances. Letter of testamentary is the legal name for these documents, but they're sometimes called letters of authority or letters of appointment. 

Why Do I Need One?

You'll need to show the letter of testamentary every time you carry out estate administration tasks on behalf of the deceased person. The letter indicates that you have the legal authority to conduct these tasks, and financial institutions won't allow you to administer on the estate's behalf without it. There are various situations when you might need to show the letter of testamentary, including:

• Opening a bank account on behalf of the estate or closing the deceased person's bank accounts
• Selling property and other assets forming part of the estate
• Paying the deceased person's debts
• Settling the deceased person's taxes

Who Can Get a Letter of Testamentary?

You can only get a letter of testamentary if the deceased person named you as their executor in their will. Rules about who can act as an executor vary by state. Many people choose their partner or adult child as executor, but some states allow institutions to act as executors. For example, many banks will agree to act as executors for a fee, especially for large estates. This option can be expensive, but it may be necessary for people without a competent, experienced family member to wind up the estate. 

How Do I Get a Letter of Testamentary?

You must apply through the probate court to get a letter of testamentary. Generally, you'll need to fill out the court's letters testamentary forms and submit them with the person's will and death certificate. The court may also ask you to provide other documents, such as proof of your identity, to establish whether you're the person named as executor in the will. 

Sometimes the court will arrange a hearing to verify the will's authenticity and your fitness to act as executor. Eligibility criteria for acting as an executor vary by state, but all require you to be:

• 18 or older (some states only accept executors aged 21 or older)
• A U.S. resident
• Mentally competent
  
  

If you have a felony conviction, you may be barred from acting as executor. You may also have to meet additional qualification criteria if you live in a different state from the deceased person. 

Once the court is satisfied that you're a suitable executor and the will is sound, it will issue the letter testamentary. It's wise to request several certified copies, as you'll need to provide one to every institution you deal with on behalf of the estate. 

What Happens If the Court Won't Issue a Letter of Testamentary?

If the court isn't satisfied that you can competently distribute the estate's assets, it won't issue the letter testamentary. Instead, the court will appoint a new executor — usually the closest suitable relative of the deceased person. If there isn't a suitable person available and willing to act as executor, the court will appoint an independent public administrator. Some states allow close relatives or the main beneficiary to select the public administrator in this situation. 

How Long Does It Take to Get a Letter of Testamentary?

How long it takes to receive a letter of testamentary depends on the processes in your state and whether anyone contests the will. If your state allows you to apply for a letter of testamentary online and doesn't require a court hearing, you could have the letter of testamentary within a few weeks of filing. However, the process could take several months if you need to attend court or a beneficiary contests your suitability to act as the executor.

How Much Does it Cost?

The cost of obtaining a letter of testamentary varies widely across states because you'll have to initiate probate. Some states charge flat fees, which means you'll pay the same amount regardless of the estate's size. Meanwhile, other states charge probate fees on a sliding scale depending on the estate's value. 

You won't usually need to pay for a letter of testamentary out of pocket because the estate pays for it. The court may even waive the probate fees if the estate is relatively low-value.

What's the Difference Between a Letter of Testamentary and a Letter of Administration?

The key difference between a letter of testamentary and a letter of administration is that the court grants the former to an executor named in the will. Meanwhile, it issues a letter of administration to a court-appointed administrator. Both letters afford roughly the same rights and authority to act on behalf of the estate. 

There are several situations in which courts may appoint an administrator and issue a letter of administration instead of a letter of testamentary. The most common is when someone dies intestate, which means they die without making a will. In this situation, the court will appoint a close relative (usually the person's spouse or adult child) as administrator or select another suitable person if no relatives are available. Each state has its own laws about who takes priority to become an administrator if someone dies intestate. 

Alternatively, the court may appoint an administrator if the named executor doesn't wish to take on the role or there is no named executor. Therefore, it's usually a good idea to name one or more backup executors in case your named person declines or is otherwise unavailable.