Letters Testamentary are the legal instrument issued by the Surrogate’s Court that grants the executor authority to act on behalf of a decedent’s estate. Without Letters Testamentary, an executor has no legal power to collect assets, access bank accounts, pay debts, file tax returns, sell property, or distribute the estate to beneficiaries.
In Westchester County, Letters Testamentary are issued by the Westchester County Surrogate’s Court in White Plains after the will has been admitted to probate.
What Letters Testamentary Are
When a person dies with a valid will, the will nominates an executor. But the will itself does not grant the executor legal authority. That authority comes from the Surrogate’s Court, through the issuance of Letters Testamentary under SCPA Article 7.
Letters Testamentary are, in practical terms, the executor’s credentials. Banks, investment firms, title companies, insurance companies, and government agencies all require certified copies of Letters Testamentary before they will release assets or provide information to the executor.
How to Obtain Letters Testamentary
The process of obtaining Letters Testamentary requires probating the will. The steps are as follows:
1. File a Probate Petition
The person nominated as executor files a petition for probate with the Surrogate’s Court in the county where the decedent was domiciled at death. For Westchester residents, this is the Westchester County Surrogate’s Court. The petition is filed under SCPA Article 14.
The filing must include the original will (do not unstaple it), a certified death certificate, the probate petition, and the applicable filing fee.
Westchester County Surrogate’s Court requires electronic filing through NYSCEF for probate proceedings. This has been mandatory since May 3, 2017. The original will must still be filed in hard copy even in e-filed proceedings.
2. Serve Citation on Interested Parties
The court issues a citation to all distributees (heirs who would inherit under the intestacy statute if the will were invalid) and any other persons with an interest in the estate. The citation gives these parties an opportunity to appear and contest the will.
If all distributees sign a waiver and consent to probate, the citation process can be shortened significantly.
3. Prove the Will
The court must be satisfied that the will was validly executed. If the will includes a self-proving affidavit (SCPA 1406), the court can rely on the affidavit. If there is no self-proving affidavit, at least one attesting witness must provide testimony (either in person or by affidavit) confirming that the execution requirements of EPTL 3-2.1 were met.
4. Court Issues Letters Testamentary
Once the will is admitted to probate and the nominated executor qualifies (by filing an oath and designation, and posting a bond if required), the court issues Letters Testamentary. See Executor Duties for the responsibilities that then follow.
Executor Qualifications
Not everyone nominated in a will can serve as executor. Under SCPA 707, the following persons are ineligible:
- Anyone under the age of 18
- An incompetent person
- A convicted felon
- A non-domiciliary alien (a person who is neither a U.S. citizen nor a resident of New York), unless he or she serves jointly with a person who is a New York resident
If the nominated executor is ineligible or declines to serve, the court will appoint an alternative, either a successor executor named in the will or, if none is named, an administrator with the will annexed (administrator c.t.a.) under SCPA Article 15.
Bond Requirements
Under SCPA 801, the court may require the executor to post a bond. However, most wills include a provision waiving the bond requirement. If the will waives the bond, the court generally honors that waiver unless a beneficiary objects.
If a bond is required, the executor must obtain a surety bond from a bonding company. The premium is paid by the estate.
How Many Certified Copies to Request
Banks, investment companies, and other institutions require certified copies of Letters Testamentary, not photocopies. The court issues certified copies for a fee. As a practical matter, the executor should request multiple certified copies at the time of issuance. The number depends on the complexity of the estate, but six to ten copies is a reasonable starting point for most Westchester estates.
Certified copies have an expiration date and may need to be renewed if the estate administration extends beyond a certain period.
Letters Testamentary vs. Letters of Administration
Letters Testamentary are issued when there is a valid will naming an executor. Letters of Administration are issued when the decedent died without a will (intestate), or when the will does not name an executor, or when the named executor cannot serve.
The practical authority granted by both instruments is similar, but the process for obtaining them differs, and an administrator (unlike an executor) is almost always required to post a bond.
For more on the administration process, see Letters of Administration.
Timeline
In Westchester County, the time from filing the probate petition to receiving Letters Testamentary depends on whether the proceeding is contested and whether all distributees consent. For uncontested estates where all interested parties sign waivers, Letters Testamentary can be issued within a few weeks of filing. If citations must be served and the waiting period observed, the process typically takes two to three months.
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