In the following article we are going to take a look at New York Letters Testamentary in detail. You might be trying to access a decedent’s bank account, or selling real estate in the late person’s name. Maybe you have received a notice from the Office of the New York State Comptroller Unclaimed Funds about an entitlement to money from a deceased family member. In these and other situations you will hear that you need Letters Testamentary.
At Ortiz & Ortiz we have expert New York estate planning attorneys who will know how to best advise you in your case. Our team has been serving the 5 boroughs of New York City for over 30 years in English and Spanish. Do not hesitate to contact us and tell us your case.
What are Letters of Testamentary in New York
New York Letters Testamentary is a document that allows a person to act on behalf of the estate of a person who died with a will.
Letters Testamentary will list the name of the decedent, name of court, date of death, file number, name of the executor, date of issuance and any limitations.
It is a document issued by the Surrogate’s Court but before the court grants a letter testamentary it will verify two things:
- The validity of the will.
- That you are named as the executor: You cannot act as executor until the court issues Letters Testamentary. Only then can you collect the assets of the estate, pay expenses and debts, and distribute the remainder to the beneficiaries of the estate.
Note: This document is a court order and not a letter. Hundreds of years ago the term “Letter” referred to an Order.
A lawyer cannot write letters testamentary for you, but they can help you obtain them from the courts. If you need a lawyer to obtain your Testamentary Letters in New York, do not hesitate to contact Ortiz & Ortiz. We have been helping with all types of cases involving inheritances, wills, and estate planning matters for over 30 years.
How to obtain letters testamentary in New York in 2021
Our New York Estate lawyer will help you get all the required documents and put them together. These, amongst others, include the petition for probate, original will and death certificate, waiver citations, family tree, due diligence and the affidavit of heirship. The lawyer may also appear in court on your behalf.
The following checklist includes must-have elements to get Letters Testamentary in New York.
- Initially you will need 2 things:
- An original death certificate: It’s recommended you order at least 10 or more originals from the funeral home. That will be way easier than obtaining them from the Department of Health in case you need more in the future.
- The original will: You must file it with the court and remember that the court won’t accept a copy. Also, remember not to un-staple the original when you are scanning a copy for yourself.
- Then you need to collect the contact information for the closest living relative by blood and information from the family tree.
- In New York the probate process requires us to notify all next of kin, even if the will excludes them.
- We must collect signed waiver court forms from all next of kin. If someone is non-responsive or refuses to sign you will have to set a court hearing date.
- Finally you need to pay a filing fee which ranges between $ 215 and $ 1,250 depending on the size of the estate.
In the event where the decedent died in a different state that doesn’t exclude you from the need to obtain Letters Testamentary in New York. Even if you have Letters Testamentary from that state you will still need to verify out-of-state Letters Testamentary via a New York ancillary probate proceeding.
In general, the named executor will be the person preparing this package but in case someone else is applying for letters testamentary, the nominated executor must be notified.
Note: A person will only be able to become executor of an estate if they are nominated by the will of the person who died and otherwise qualified, being over the age of 18 and not a convicted felon. You can learn more about the role of an executor in our article “Executor of estate in New York”. You might also be interested in reading about the differences between an executor and an administrator and the difference between an executor and a trustee.
How long will it take to get Letters Testamentary?
This really depends on two key elements:
- If the filing submitted is complete;
- The court’s backlog.
It typically takes a few months to get Letters Testamentary. However, if the probate is contested and someone is challenging the will it can take years or even reach the point where Letters Testamentary are denied.
- Delays are longer in summer months as judges are on vacation or ready to get on vacation.
- Also, some counties are able to process filings faster than others.
In New York, getting letters is only one of the steps of the probate process, but is the most important one.
Important: Do not submit papers by pieces. An in-person filling will usually get checked by the clerk right away and if there are no items missing it will go straight to the judge’s chamber for signature. If the file is marked as incomplete it can be misplaced or even forgotten.
Unless you are filing for a small estate (usually below $30,000), this won’t be processed in one day so you will have to wait at least 60 days after you submit all documentation to the Surrogate’s Court.
Note: If there is a missing document on the initial filing this can delay the entire process to obtain Letters Testamentary for months.
In case the person who died did not leave a will, the document (with similar powers) is called Letter of Administration and the Certificate will be called Certificate of the Appointment of Administrator. You can find a blog on our site that explains New York Letters of Administration in detail.
When do I need Letters Testamentary?
The truth is that you will need it in almost all matters concerning a late person’s assets. You will need them in the following situations:
- In the transfer of real estate via deed to heirs.
- Selling real estate to a buyer.
- When selling the cooperative or transferring shares of a cooperative to heirs.
- Liquidating life insurance policies and bank accounts
- Retrieving assets from unclaimed funds.
- Begin a personal injury lawsuit or wrongful death action on behalf of the decedent..
- Investigation of finances or medical records.
- Filing a tax return for the decedent.
What can I do once I get Letters Testamentary?
Once a person is appointed as an administrator of an estate by Letters Testamentary issued by the Surrogate Court they can:
- Request information from banks and other institutions that are in control of the decedent’s assets.
- Obtain a tax id number for an estate from the federal government.
- In the name of the estate you can transfer assets from the decedent’s name.
- Collect claims and pay debts of the decedent.
- Marshal assets of the estate.
- After obtaining proper waiver or providing accounting you may distribute the estate assets to the beneficiaries of the estate.
- Open an estate bank account.
Note: Does an executor have to show accounting to beneficiaries? Learn everything you should know about it.
An experienced NY asset protection attorney will study your case in depth and tell you exactly the best options available for your case.
The use of preliminary Letters Testamentary in Probate Court
We have previously seen that if you have not been appointed executor of the last will of a deceased person, you don’t not have the authority to sell or distribute their assets until appointed by the Surrogate’s court.
When the succession process takes longer, the preliminary letters of the will can be used. Through these, a designated executor can quickly and efficiently handle the affairs of the decedent in the event of a lengthy process.
What are Preliminary Letters?
With this document, the nominated executor gets the rights that a full fledged executor has except for the right to distribute the assets to the beneficiaries. Therefore, a preliminary executor has authority to:
- Collect all assets.
- Pay estate,income taxes and debts of the estate.
- Sell real property not gifted in particular to a beneficiary.
The court will retain the right to expand or restrict the rights of a preliminary executor following their own judgement.
Preliminary Letters Testamentary are used when the decedent died with a will while Temporary Letters of Administration will be the document used for when the decedent died without a will.
What situations may warrant Preliminary Letters?
In general, preliminary letters are needed when estate assets need to be managed quickly and you can anticipate a delay. Some situations that involve preliminary letters are:
- Encountering difficulties to locate witnesses to the will so they can produce an affidavit or testimony regarding the execution of the will.
- A delay trying to locate the heirs of the decedent.
- An event that requires imminent action such as a pending foreclosure sale or any other situation that requires quick action from the executor..
- A will contested by an unhappy family member may delay probate for months or even years.
Note: Learn everything you should know on the steps to contesting a will successfully.
The process to obtain Preliminary Letters
- Although you can request preliminary letters at any time prior to the issuance of permanent Letters testamentary, as a general rule, the appointed executor will make this request when you file the probate petition.
- The court has the power to deny preliminary letters to the petitioner if it deems it appropriate.
- Each Surrogate’s Court may have their own requirements for the form. So although there is an official form for preliminary letters it is always better to verify it with the court.
- Furthermore, some courts require a bond to be posted and others don’t.
- Preliminary letters will be revoked as soon as full permanent Letters Testamentary is issued.
Temporary letters or Preliminary Letters are usually valid for 6 months at a time so the fiduciary will need to act quickly and renew them if necessary. In certain counties the letters are valid indefinitely so you should talk to our lawyers so they can advise you on county rules.
Contact if you are thinking of seeking or refraining from seeking preliminary letters. As with every important legal matter, the advice of an expert will be key to achieving your goals.
Get legal help regarding probate issues in the New York area
If a loved one died without a will or you need legal assistance in a probate process you should contact our experienced New York probate lawyer as soon as possible. You can call or email our office directly to schedule your free consultation. We have been proudly serving clients throughout The Bronx, Brooklyn, Manhattan, Queens and Staten Island for over 30 years.
Call us now and let us know your case.