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Q: I’m trying to get access to my deceased mother’s bank account, but the bank tells me that I need Letters Testamentary or Letters of Administration. What are these Letters, and what’s the difference between them?
When a person passes away in New York state with assets that are solely in her name, a legal representative needs to be appointed to manage her estate. The Surrogate’s Court of the county where that person lived prior to their death appoints these representatives and grants them authority to act. Once the Court is convinced that you are the appropriate person to act as representative, they will issue Letters Testamentary, or Letters of Administration – proof that you have been appointed by the Court.
How to Obtain Letters Testamentary
If the deceased person signed a Last Will and Testament before her death, the person named in that Will as Executor has priority to apply for Letters Testamentary, through a process called “probate”. In most cases, the nominated Executor submits this application (the “Petition”) to the Court, along with a death certificate and the original Will for review and processing. If the Court is satisfied with the Petition, the Surrogate issues a decree granting the probate, along with Certificates of Letters Testamentary. Those Certificates serve as evidence that the Executor is qualified to act on behalf of the estate, based on the deceased person’s Will.
What If There is No Will?
When there is no Will – that is, the person died intestate – the Court does not appoint an Executor. Instead, it appoints an Administrator, who must act and make distributions in accordance with New York intestacy laws. These laws also determine who has priority to apply for this role: spouses and children come first, then parents, then siblings, nieces and nephews.
If there are multiple people with equal priority to act as Administrator, they each must agree on who will serve in the role. This is typically done by having the parties sign a Waiver and Consent, where they agree that the applicant should serve as fiduciary. Furthermore, these parties must also agree on whether the Administrator requires a surety bond, which guarantees that the representative will properly manage the estate, pay just debts, and distribute the funds as the law dictates.
Once the Court is satisfied, the Surrogate issues the decree and Certificates of Letters of Administration.
Letters Testamentary vs. Letters of Administration
While Letters of Administration are functionally the same as Letters Testamentary, with the same powers, they indicate that the deceased person died without a Will – meaning the Court has determined who is entitled to receive a distribution. With Letters Testamentary, the fiduciary instead makes distributions of assets based on the terms of the Will.
Need Guidance After a Loved One Has Passed? An Attorney Can Help.
Regardless of whether you need to obtain Letters Testamentary or Letters of Administration, the Surrogate’s Court process can often be complex and time-consuming. It’s best to speak with an experienced estates attorney to make the process as efficient as possible and ensure that your loved one’s estate is handled appropriately.
By Britt Burner, Esq. and Frank Oswald, Esq.
Britt Burner, Esq. is the Managing Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing his practice areas on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.
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What is Surrogate’s Court in New York?
Surrogate’s Court hears cases involving the affairs of decedents, the probate of wills, and the administration of estates. The Surrogate’s Court also handles certain types of guardianship petitions and adoptions.
August 3, 2022