Real Estate Planning Blog

Monday, June 26, 2017

Probate: An Overview of Letters Testamentary

An individual who has been named as the executor in a will has a number of important duties that are centered on collecting the decedent's property and transferring it to the rightful heirs through probate. This is a court-supervised process that governs how an estate is managed and distributed.

How is the Probate Process Started?

Before the probate is opened, the person named as the executor in the will must obtain Letters Testamentary. This is a legal document that gives the executor legal authority to carry out his or her duties, including:

  • Collecting and inventorying the estate assets
  • Having the assets appraised
  • Paying valid debts to creditors
  • Filing the decedent's final income taxes
  • Paying applicable estate taxes
  • Distributing the remaining assets to the beneficiaries

In order to obtain this document, the executor needs to petition the surrogate court in the county in which the decedent lived. This requires submitting the death certificate with the court clerk as well as completing an application. The court will conduct a hearing to verify that the executor is capable of acting in this capacity, and then issue the letters.

It is important to note that the decedent's assets may be held by another person or an institution such as a bank. Moreover, these entities will need to retain the document for their records, so it is important to obtain a number of certified copies. In short, once the executor receives the Letters Testamentary, he or she can carry out the duties mentioned above.

What happens if there is no will?

If a person dies without a will, one of the decedent's heirs - usually a close legal relative, needs to ask the court to be appointed as the estate administrator. Again, the court will conduct a hearing in order to issue Letters of Administration and open the probate proceeding. The role of the administrator is to distribute the estate assets according to the intestacy laws of the State where the decedent resided at the time of death.  

Why You Need an Attorney to Probate a Will

If you are preparing a will, it is important that the person you choose to act as the executor is capable and trustworthy. Similarly, if you have been named as an executor, you have a fiduciary duty to the beneficiaries and must faithfully carry out the instructions of the will. In the end, if you need assistance preparing a will or have been named as an executor, you are well advised to consult with an experienced probate and estate administration attorney.

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