Despite the name,
Letters Testamentary is not really a "letter" at all. Rather, it is a
document issued by a probate court that gives the authority for someone to
administer the estate of a decedent.
The probate court must
appoint someone to act as the personal representative (PR). Even if you were
nominated as the PR in the decedent's Will, the court has final authority as to
who actually serves. Probate courts give a lot of weight to the nomination of
PR in a valid Will; nevertheless, you're not the PR until the court appoints
you as such.
Probate courts view
decedents as falling into either of two categories: A person who has died with a
valid Will (testate), or one who has died without a Will (intestate). If the
decedent died testate, the court issues Letters Testamentary. If the decedent
died intestate, then the court would issue Letters of General Administration.
Confused? Don't be. Letters Testamentary and Letters of General Administration are basically the same thing. In both cases it is a document from the court giving the go-ahead for the appointed personal representative to administer the estate.
A few things must be done before the court will issue Letters Testamentary. Of course, the first step is to file an application or a petition with the court to begin probate. If there is a Will, you need to present the original document to the court. You will be required to provide notice of probate proceedings to all interested parties, including family members, beneficiaries, and creditors. You will also need to publish a notice of the probate in the local newspaper, usually for two consecutive weeks. After you have provided proper notice, you file affidavits with the court, and once satisfied, the court then issues Letters Testamentary or Letters of General Administration, depending on whether or not there was a valid Will.
This can be a rather convoluted process. It's always wise to seek counsel of a qualified probate attorney before jumping in to probate.
The process of obtaining Letters Testamentary can take several weeks, due to your notice process and the court's handling the paperwork. Be patient. The cost of obtaining Letters Testamentary can range from a few thousand dollars, to tens of thousands, depending on the complexity of the estate. These expenses are paid from the estate assets, but if you don't have access to estate assets right away, you will be reimbursed for out-of-pocket expenditures relating to estate administration. Note that estate administration expenses (including attorney fees) rank at the top of the priority of debts to be paid from the estate.
Note: If the aggregate value of the decedent's estate is under $75,000 with no real property, it is considered a small estate and probate is unnecessary. Obtaining Letters Testamentary becomes a moot point.
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If you have questions about this process, seek the advice of a qualified probate attorney.