How to get Letters Testamentary in NY
The Process in Acquiring The Letters Testamentary in NY
You might have received notice from the Office of the New York State Comptroller Unclaimed Funds about an entitlement to money from a deceased family member. Or, you may be trying to access a decedent’s bank account, or sell real estate in the late person’s name. However, everywhere you turn, you keep hearing that you need Letters Testamentary.
Acquiring letters testamentary or letters of administration in NY is not a one-day process. As you learn more about the procedure, it can quickly start to feel like an extraordinary challenge. Often, mistakes and missing paperwork by a pro-se filer can turn a simple estate into lingering process of several years. As NY estate probate lawyers, we cross this bridge daily. The following is a brief guide to help you navigate the process.
Is There a Will?
The starting point is to determine whether the decedent left a will. If there is a will, then the decedent is called to have died “testate.” Die without a will in New York, and you’ll be considered to have died “intestate.”
If there is a will, then “letters testamentary” are necessary to access any of the decedent’s accounts and sell his real estate. If there is no will, then you need “letters of administration”.
If no will can be found in the decedent’s home, and the people closest to the him have no knowledge of this document, then in all likelihood he died without a will, ie “intestate”.
Where to Apply for Letters Testamentary
If you are able to locate the decedent’s will, then the original must be filed with the Probate Department in Surrogate’s Court. Each county has their own Surrogate’s Court, and the department will only accept the filing if the decedent lived or owned assets in this specific county.
For instance, if you live in New York, and the decedent lived in Florida, then you apply for letters testamentary in Florida. But, if he lived in Orlando and owned real estate in Brooklyn, then Kings county may be the primary jurisdiction to file (assuming there are no assets located in FL).
It’s important to know that you open an estate where the decedent was domiciled (ie lived), not where he died. If he died while visiting a family in Colombia, an estate is opened in New York, if that is where he lived and intended to return.
What Does it Mean to Probate a Will?
A will is not binding until it is admitted into “probate” by the Surrogate’s Court. This admission of the will signals to everyone who may be concerned, that the Surrogate’s Court has accepted and approved the document to be the decedent’s last will and testament. A decedent could have made ten wills during his life. The one that is admitted into probate controls.
The role of the Probate Department is to ensure that the will filed with the Court is in fact the will of the decedent; it expresses his last wishes; the document complies with New York law; it was executed without the exertion of undue influence or duress; and that all heirs are notified of the documents and have the opportunity to contest.
What are Letters Testamentary Exactly?
Just because the will nominates someone the executor (I appoint Jim as executor of my will), does not make it so. The court has to approve the nomination. And it’s not official until letters testamentary are issued by the court appointing the nominated executor as the representative of the estate.
Letters Testamentary list the name of the decedent, date of death, name of the court, file number, name of the executor, date of issuance and any limitations. Here is an example:
Creditors, financial institutions, title companies, will all ask to see letters testamentary to make sure you have the authority to speak and act on behalf of the estate.
When the will is admitted into probate and letters testamentary are granted, the executor can start collecting and transferring assets, selling real estate, paying expenses of the estate, and making distributions to beneficiaries. Unclaimed funds, banks, brokerages, title companies, co-op boards, all require a certified copy of letters testamentary. The same principle applies when the decedent dies intestate, except that certified letters of administration is required.
How Long Does It Take for Letters Testamentary to Issue?
The length of time it will take to obtain letters of administration or letters testamentary depends on the court’s backlog and most importantly, whether the filing submitted is complete. Some counties are able to process filings faster than others; they have less cases and more efficient administrative staff. The delay is longer in the summer months as judges are on vacation or are getting ready to go on vacation.
The worst thing you can do is submit papers by piecemeal. An in-person filing usually gets checked by the clerk right away and if no items are missing, it goes straight to judge’s chambers for signature. A file marked incomplete can get misplaced or forgotten about. Letters testamentary can issue months behind schedule if one document is missing from the initial filing.
Unless you are filing for a small estate (under $30,000), this is not a one-day process. Expect a return period of at least sixty days after you submitted all the papers to the Surrogate’s Court.
When Do I Need Letters Testamentary?
In almost all matters concerning a late person’s assets, you need Letters Testamentary. Letters testamentary are necessary in the following situations:
- Selling real estate to a buyer
- Transferring real estate via deed to heirs
- Filing a tax return for the decedent
- Transferring shares of a co-op to an heir or selling the co-op
- Retrieving assets from Unclaimed Funds
- Starting a wrongful death action on behalf of the deceased
- Starting a personal injury lawsuit for a wrong to the decedent
- Investigation of medical records or finances
- Liquidating bank accounts and life insurance policies
If you attempt to sell the decedent’s real estate without opening an estate and obtaining letters testamentary, you cannot lawfully sell the property. The court appointed executor is the only individual who can sign a deed conveying the estate’s interest to a buyer. A title company will require the issuance of letters testamentary before a closing can take place.
What about transferring shares in a cooperative apartment to the decedent’s surviving spouse? If only the decedent is listed on the shareholder certificate, then an estate must be commenced and letters obtained before shares can be transferred.
The same rule applies for transferring bank and brokerage accounts, and even accessing medical records of the decedent. Without letters testamentary, you are not authorized to act on behalf of the estate.
Update as of April 2021:
If the decedent owned assets in two states or more, an estate must be opened in each and every state. New York Surrogate’s Court has no jurisdiction over property located in Florida or any other state. This often happens when the decedent owns real estate in multiple states. In this case, you begin by choosing the primary jurisdiction where to open an estate.
For example, Anna lived and opened her bank accounts in Florida, while owning a condo in Brooklyn. Letters testamentary should first be obtained from the probate department in the Florida Surrogate Court, and only then can the executor apply for ancillary letters testamentary in Kings County Surrogate’s Court. The executor will collect Florida assets using her letters testamentary and she will sell the Brooklyn property with her ancillary letters testamentary.
Contact a Probate Lawyer
Trying to get a handle in this field pro-se may create big problems in the future. To navigate the estate process, you don’t need to read a book, watch a video, or download anything. All you have to do is hire a lawyer you can trust. Contact us at 646-736-6328 to set up your initial consultation.