Sep 30, 2022 Letters Testamentary in New York
What’s the difference?
A “letter testamentary” is an order issued by the NY Surrogate’s Court empowering the person named as executor in a decedent’s will to act on behalf of the decedent’s estate.
In this blog post, we’ll explain what letters testamentary are, why they’re so important, and how they function in the modern Surrogate’s Court in New York. As experienced New York probate lawyers concentrating in wills, trusts, and estate planning, Ely J. Rosenzveig & Associates is committed to ensuring that every client understands how New York law may apply to their individual circumstances. If you want more information about letters testamentary or any probate matter, call us today at (914) 816-2900 or email us at: [email protected].
What Are Letters Testamentary and When Do You Need Them?
The term “letters testamentary” can be a bit confusing because their name suggests that they are letters someone can write for you. In fact, the term “letters testamentary” is what these formal court documents have been called for hundreds of years. Much of our American law developed from English common law, and the English called a court order a “letter” back in the 13th century. The term has survived despite recent trends to modernize the language lawyers and courts use.
In fact, a letter testamentary is an important court order issued by the NY Surrogate’s Court only after the court conducts a detailed review of all the documents submitted by the person seeking to be recognized as the legal executor of decedent’s estate. One of the most important parts of an individual’s will is their nomination of a person to be the executor of the will — to carry out the terms of the will.
However, when the testator dies, New York law insists that the nominated executor receive formal recognition from the Surrogate’s Court before they can take any action relating to the decedent’s estate. The court requires evidence of the will’s authentication, proof of notice to all the heirs and prospective beneficiaries of the estate, and evidence of the person’s fitness to carry out the duties of the executor.
Unless the Surrogate’s Court issues letters testamentary to the proposed executor, that person will have no legal authority to act as the executor of an estate.
What Can You Do with Letters of Testamentary in New York
When the Surrogate’s Court issues the formal letters testamentary order to an individual, the person to whom they are issued has the legal power to execute the will of the decedent by taking actions including, but not limited to, the following:
- Obtain a tax id number for an estate from the federal government
- Gather assets of the estate
- Open a bank account for the estate
- Request information from banks, insurance companies, and other financial institutions that may have possession or control of assets belonging to the decedent
- Identify and collect claims in the name of the estate that were owed to the decedent
- Identify and pay enforceable debts owed by the decedent
- Transfer assets in the decedent’s name to the estate’s name
- Sell real estate held by the estate
- Bring or defend litigation on behalf of the estate
- Contract for maintenance and services necessary to preserve estate property
- Distribute the estate assets to the beneficiaries of the estate after filing an accounting or obtaining appropriate waivers
How Do You Get a Letter Testamentary in New York?
To obtain letters testamentary from the New York Surrogate’s Court, an experienced New York probate lawyer’s help is valuable.
The original will must be located and presented to the court with the petition to probate the will. Those documents must be accompanied by the decedent’s original death certificate, and a family tree illustrating the names, relationships, and contact information of any heirs, beneficiaries, or others who may have a claim to an interest in the estate’s assets.
Properly signed waiver and consent documentation must be signed by each natural heir and named beneficiary. If you are unable to secure these documents, proof of notice to each of those persons must be filed with the court, and a court date will need to be set at which time a hearing will be conducted to determine whether the executor named in the will receives the letters testamentary.
If there are no persons to whom to distribute estate assets, or if the only distributee relationship to the decedent is a grandparent, aunt, uncle, or cousin, then an affidavit of heirship sworn to by a disinterested person with knowledge of the family must also be filed. Again, hiring a knowledgeable New York probate attorney is imperative to ensure that the appropriate procedures are followed and all necessary documents are prepared properly.
How Long Does It Take to Get Letters Testamentary in New York?
The process of obtaining letters testamentary from the New York Surrogate’s Court can take from a couple of months, if no issues are contested, to a year or longer, if a family member or potential beneficiary challenges the validity of the will.
Delays could also result from filing an incomplete set of documents or discovering that information filed with the court was incorrect. The petition to probate the will and all supporting documents must be filed with the Surrogate’s Court in the county in which the decedent resided at the time of their death. Some counties’ dockets have substantial case backlogs which could further delay receiving letters testamentary.
Obtaining Preliminary Letters Testamentary
In many cases, significant actions need to be taken in the near term to preserve the interests of the estate and its beneficiaries before the formal issuance of letters testamentary. The decedent’s property may be facing foreclosure, or a deadline for filing a claim on the estate’s behalf may be approaching. In situations requiring immediate action to protect important estate interests, a prospective executor can seek preliminary or temporary letters testamentary.
With preliminary letters testamentary, the designated executor can effectively manage the estate and perform appropriate functions subject to any restrictions imposed by the Surrogate’s Court. Assets may not be distributed to beneficiaries under the preliminary letters testamentary.
Rely on Probate and Estate Attorneys with Many Years of Surrogate’s Court Experience
Presenting a will for probate involves a long list of procedures that must be followed for the process to move through the Surrogate’s Court successfully and without unnecessary delay. Almost without exception, some preliminary actions must be taken to preserve and protect valuable estate assets and to prevent developments that might otherwise damage estate interests.
Ely J. Rosenzveig & Associates has extensive experience handling probate matters from the creation of a will through every step of the probate process through to the completion of the final distribution and accounting of assets. With years of Surrogate’s Court practice, our attorneys have the expertise to guide you successfully in the most effective way possible.