Most wills appoint someone to serve as an executor. An executor has the important duty of gathering the deceased person's property and transferring it to those named in the will through a court-supervised process called probate. The executor initiates probate by submitting the will to the court and requesting letters testamentary that will allow the executor to legally act on the estate's behalf. After the court issues the letters, the executor has the legal authority to exercise control over the deceased person's property.
What Are These "Letters Testamentary"?
Letters testamentary are official papers issued by the probate court. As part of their duties, the executor must collect the assets of the deceased, which may be in the possession other people or an institution like a bank. The letters, often in conjunction with a death certificate, act as the official credentials that allow the executor to take possession of the property on behalf of the estate. The executor can then have the assets appraised or sold to pay off any outstanding debts, then transfer the remaining property to the beneficiaries according to the terms of the will.
Read More: Letters Testamentary Without a Will
Disqualifications From Acting as Executor
States have specific rules in place regarding who can serve as an executor. Although these qualifications can vary by jurisdiction, the executor must normally be a mentally competent adult and not a convicted felon. If the will appoints someone who does not meet these criteria, they will be disqualified from serving as executor and the court will appoint an alternate executor. Only the executor of an estate is awarded letters testamentary.
How to Get the Letters Testamentary
Most states allow an executor to request letters testamentary at the time the will is submitted to the court for probate in the county where the deceased person lived. The executor would simultaneously file an application with the probate court. This procedure can vary from state to state, but the application is typically short and asks for an estimate of the value 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 will appoint the applicant as executor, officially opening probate and granting the letters testamentary. 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 begins the probate process by filing an application for letters of administration, which are similar to letters testamentary and carry much the same authority. In this case, the court holds a hearing to appoint a person to serve as the estate administrator who will carry out virtually the same duties as an executor.
The major difference between the executor's role and that of an estate administrator is that after property is appraised and debts are paid, the administrator transfers the decedent's 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.
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."