What are Letters Testamentary? In Texas, Letters Testamentary are the official documents that Texas Courts give to the court-appointed executor of the estate to show that the executor has authority to act on behalf of the estate.
When are Letters Testamentary typically required in Texas? A decedent's family members will often go to the decedent's bank or other financial institution and request control over the decedent's accounts. The decedent may have designated a pay on death or "POD"; beneficiary on the account. The decedent may have also held the account jointly with another person with a right of survivorship ("JTWROS"). In such cases, the financial institution will usually transfer control of the account to the beneficiary or joint owner upon receiving an original, certified death certificate.
If the decedent did not leave a beneficiary or joint owner on the account, then the assets are payable to the decedent's estate. The bank representative may tell the family member that they "need a letter from the probate court." They may also use the term "letters testamentary" or "letters of testamentary." It sounds like a very simple process: go to the court and ask for a letter.
Who is disqualified from receiving Letters Testamentary? Section 78 of the Texas Probate Code provides as follows:
No person is qualified to serve as an executor or administrator who is:
- An incapacitated person;
- A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;
- A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;
- A corporation not authorized to act as a fiduciary in this State; or
- A person whom the court finds unsuitable.
How does a named executor get Letters Testamentary? In order to get Letters Testamentary in Texas, the person named in the decedent's will must file an application for probate of will and for the issuance of letters testamentary. This application is usually filed with the Probate or County Court in the county where the decedent resided. The court will then have a hearing on the application and, if approved, will issue the Letters Testamentary to the named executor. The executor can then go back to the bank and present the Letters Testamentary and a death certificate in order to claim the assets on behalf of the estate. The assets can then be used to pay creditors claims and taxes, and then be distributed to the heirs of the estate.
When must an executor file an application for Letters Testamentary? Exceptions apply, however, normally an executor of an estate must file an application to probate of will within four years after the date of the decedent's death. Nevertheless, an estate is at risk of deterioration or dissipation from the moment of the decedent's death. Furthermore, an executor named in the will has NO authority to act until he or she is issued letters testamentary. Therefore, a named executor should immediately file for probate so that he or she can be clothed with the authority of the probate court and can begin administering the estate of the decedent.
What if the Decedent did not leave a will? If the decedent did not leave a will, the next-of-kin may file a Small Estate Affidavit or an Application for Determination of Heirship and for the Issuance of Letters of Administration. In Texas, a court-approved Small Estate Affidavit or Letters of Administration have the same effect as Letters Testamentary. Letters Testamentary are issued pursuant to a Last Will and Testament. Letters of Administration are issued by the court to a court-appointed administrator when there is no will.