Most wills appoint someone to serve as an executor, who has the important duty of gathering the deceased person's property and transferring it to those named in his will through a court-supervised process called probate. The executor can initiate probate by obtaining letters testamentary. Once the court issues the letters, the executor then has the legal authority to exercise control over the deceased person's property.
Letters Testamentary Overview
Letters testamentary are official papers issued by the probate court that provide an executor with the legal authority to administer the deceased person's estate. As part of his duties, the executor must collect the assets of the deceased, which may be in the possession of another person or institution like a bank. The letters, often in conjunction with a death certificate, act as the official credentials presented by the executor, allowing him to take possession of the property on behalf of the estate. The executor can then complete his duties, which typically include appraising the assets, paying off any outstanding debts and then transferring the property to the beneficiaries according to the terms of the will.
States have specific rules in place regarding who can serve as an executor and obtain the letters. While the qualifications can vary, the executor must normally be a mentally competent adult and not a convicted felon. If the will appoints someone who does not meet the criteria, he will be disqualified from serving as executor and the court will appoint an alternate executor.
Obtaining the Letters
If the named executor meets the criteria, most states allow him to request letters testamentary by filing an application with the probate court in the county where the deceased person lived. Although this procedure can vary from state to state, the application is typically short and asks for an estimate of the deceased person's property and debts, as well as a sworn statement that the person submitting the form is indeed the individual named to serve as executor in the will. The court will then schedule a hearing on the application, and verify that the person meets the state criteria. If approved, the court appoints the applicant as executor, officially opening probate. It is important to note that some states have a particular time frame for initiating probate with an application for letters testamentary. In Texas, for example, the executor generally must file within four years from the date of death.
Letters of Administration
States typically have a different application process if a person dies without a valid will in place. When this occurs, an heir of the deceased person, meaning a blood or legal relative, usually starts the probate process by filing an application for letters of administration. In this case, the court holds a hearing to appoint a person to serve as the estate administrator, who carries out virtually the same duties as an executor. The major difference between the executor's role and that of an estate administrator is that once property is appraised and debts are paid, the administrator transfers the assets according to the state's intestacy laws as opposed to the provisions of a will. These rules give priority to spouses, children and parents.