What are letters testamentary?
If you were named as the executor of a person’s will then you will be responsible for collecting and inventorying their property after he or she passes away. Additionally, the bills of the person who has passed in addition to their debts will also need to be accounted for. Frequently this involves going through the probate process so that creditors have a chance to come forward and ensure that they are paid (as much as possible) towards the debts owed to them by the decedent. Once debts have been paid you would be able to distribute property according to the terms of the will.
However, before you can start to distribute the property you will need to make sure that you have been given clearance to do so by the probate court judge. In most cases, this involves obtaining letters testamentary from a probate court. In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss what it means to obtain these types of documents, what they are, and how they can impact your role as executor of a will or administrator of a person’s estate.
To begin with, letters testamentary give you the legal authority to act on behalf of a decedent in matters related to their estate. Whether it be paying creditors or distributing property to beneficiaries, you need permission from the court to perform these actions. How you get that permission is through the letters testamentary that we are going to be discussing today in our blog post. During the probate process concerning a will in Texas, most banks or creditors will require that you provide them with a copy of the letters testamentary to begin the process of telling you what is owed to them by your decedent. A payoff amount for a loan cannot be obtained, for example, without first providing the creditor with letters testamentary.
Letters testamentary are a court order which provides proof to the creditor or other financial institution that you have been appointed properly by a probate court and are qualified to execute the will. Part of this execution of the will relates to paying creditors if there are any. Normally, these institutions will not grant you access to accounts after a person dies. This can make it nearly impossible to see to it that their accounts are in a position to be closed if there are no outstanding balances or debts associated with them.
How do you get your hands on letters testamentary if you are an executor?
When you are named as the executor of a person’s will that is a major responsibility. The trouble with this is that some people who appoint an executor via their will never actually tell the person that they have been appointed. You will be out living your life until one day a judge or someone’s spouse will call you to say that you are the executor of John Smith’s will. This will usually come as a surprise when John Smith never contacted you beforehand to tell you about their putting you down as an executor.
In a healthier situation, you would have been contacted beforehand by the person who created the will so that he or she could tell you about their desire to list you as the executor. You may be the best person for the job- responsible, honest, and dependable. In many ways, it is a compliment to be named as the executor of a person’s will. If the person who named, you as an executor is a family member then you may be obligated to act in this capacity. However, if you do not believe that you can fulfill the duties of an executor then you would have the chance to tell the person if he or she tells you about your being named to this role. Better to tell the person and allow him or her to name another person as executor, rather than to have to wait and tell a judge that you are unwilling or unable to perform the duties of an executor after that person has passed away.
Once the person has told you that he or she would like you to be their executor you need to consider whether this is going to be a responsibility that you can handle. It is a somewhat rigorous process in terms of keeping up with the case and understanding the law. You will be instructed to a large extent by the court on matters related to a will, but it is helpful if you can be organized and understand what your responsibilities are daily. Having a game plan and an idea of how to attack these requirements is a good idea. Next, there is a time requirement that you attend hearings on occasion, handle matters related to the family of the decedent, and in contacting creditors and others to make final plans to close out accounts on behalf of the estate. Lastly, you will be responsible for dividing up property according to the terms of the will.
These are serious responsibilities that you should consider whether you have the aptitude and time to serve as executor. If you are not willing you should be honest with the person and explain why you believe that you are not able to do so. That person should hear it from you now while he or she still has time to name a substitute executor rather than place your name in the document and then struggle to find someone later on. Or worse yet- for their family to need to probate the will and have another person appointed as executor if they step forward and tell the court that they are not willing to serve.
If you are willing to serve as executor of the will then you must apply to the probate court within four years of the decedent’s passing. For most people, this is not going to be an issue. There will be pressure to get the ball rolling on the probate process as soon as possible after the person passes away. Friends and family (beneficiaries under the will) can reach out to you to receive updates on the probate process. They want their money/property, but they also will want closure regarding the entire subject matter involved. The responsibility to begin that process rests on your shoulders.
However, there may be a situation that has played out where the person passed away but told nobody about the will. His or her spouse may be looking through documents a few months after their passing only to find a well tucked away in a desk drawer. When you are named as the executor you can file the probate case yourself or the decedent’s spouse may step forward to do so. Once the will has been submitted to the court and you have filed an application to get the process started a hearing will be held which allows a judge to review your application to probate the will.
Attending a court hearing
Once you have been officially acknowledged by the court as the executor of the will a hearing will be held in probate court. Any documents filed into the case will be reviewed by the judge. The will would be scrutinized by the judge and any person who would like to contest the validity of the will may do so. Once you have applied for letters testamentary the judge will send out a notice of citation which will allow for any creditors to come forward and assert their claims against the estate. This includes family members and others who have a read to contest the will or otherwise become a part of the case.
In most cases, letters testamentary are issued within 30 days of the hearing date. This is when your case begins in earnest because it allows you to contact third parties on behalf of the estate to ask questions, obtain information and close out matters related to the debts, payments, or bills of the deceased individual. These matters must be attended to before your distributing property to any of the beneficiaries under the will.
If there is no will what happens?
A judge will only issue letters testamentary if there is a valid will. No will means that any heir to the estate of the deceased individual can go to the court and apply to become an administrator of the estate. Remember the importance of a will when it comes to being able to determine where your property ends up after you pass away. Having a will means authority and autonomy over determining where your property ends up. It could end up with your family, friends, or anyone for that matter. Your church or a charity could get all of your property when you pass away- if that is what you want to happen.
When you do not have a will it becomes much more confined as to who ends up with what in terms of your property. This blog is not going to cover the specifics of who ends up with what but suffice it to say that your spouse (if you have one at the time of your death) and your children will end up with most if not all your property if you die without a will. This is ok if you want your family to be able to end up with your property. It isn’t a great plan when you want other people or entities to be able to receive items and assets. Do not take it for granted that you have the ability, while you are alive, to be able to determine where your property goes. Nobody else can do this for you.
When you die without a will it also sets what could be an ugly dynamic within your family and the probate courts. If you have a spouse and a few, grown children who all get along this is usually not that tumultuous of a situation. However, if you have children from multiple marriages, a current spouse who doesn’t get along with the kids from a prior marriage, or heirs who like to cause trouble when they can this is a recipe for disaster. These folks will use the opportunity of your passing to try and scoop up any property that they can. This means people coming out of the woodwork to try and elbow their way in front of the immediate family or to try and do anything that they can influence the probate court judge. It all becomes so much simpler when you die with a will.
Rather than sending out letters testamentary, a judge will instead select an administrator of your estate and then will issue letters of administration. These letters of administration will do what the letters testamentary did have you died with a will.
What can you do to prepare for probate court as an executor?
If you are named as the executor of a will, by a parent for example, there are certain steps that you can follow to prepare for what is coming. It is a tough task to handle matters related to a parent’s death. These are legal and procedural issues as well as learning how to handle the emotions associated with an important and sad event in your own life. As a result, it is best to go into that process with a distinct plan in mind. Be as intentional as you can be and you will be able to handle these challenges much better than if you simply wander into the situation without a plan in place.
First things first- you need to be able to communicate effectively with a diverse group of people. You should talk to your parent about this responsibility. What are the expectations of your parents and what does their way say? If you are not sure about something you should ask them now while you can do so. This is not something that you should put off. Your parents will have an opportunity to voice their opinions to you about whatever is contained in this will. You should listen and ask questions as well. It is an honor to be asked to execute a will, but it is a lot of responsibility, as well.
Some items may not be covered by the will. You do not necessarily need to update the will if everyone agrees on what to do with personal property, but it is not a bad idea to include those items in a codicil to the will or in an addendum. At this stage, it may be better to simply communicate to all relatives and family members what is in the will and who is included. A reading of the will is a great idea. Rather than have you be the “bearer of bad news” after a parent has passed away, let everyone know what is in the will now so that it is not a surprise after the passing of a parent.
You should get your hands on the wall and make sure that any important documents are also included with the will in your important papers. The original will is something that you need to keep handy since you are the executor. Trust documents, insurance papers, and contact information for your parent’s insurance, real estate, or investment contacts are all important to keep handy during this time. Start to collect and organize this information so you can have it ready to go when a parent passes away. The last thing you want to do is to strain yourself to keep track of things when you are going through the grieving process. The more work you can do now, the better.
It makes sense to have as many copies of your parent’s death certificate as possible. Your parent’s bank, life insurance company, investment advisor, and other people will all need a copy of the death certificate. Anyone who is not covered by the will needs a death certificate to release funds to you as the executor. The funeral home where your parent will be buried can obtain them for you, but you can also contact the county where your parent died to learn more.
Not every will or estate must go through the probate process. A living trust allows you to bypass probate. Probate slows the entire process down. If your parent has non-probate assets like retirement accounts, life insurance policies, and bank accounts with transfer on death notices then you may not have to go through with a probate case. Otherwise, you can prepare as best you can for probate.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning law as well as how your family’s circumstances may be impacted by the filing of a probate lawsuit.
from Texas Bar Today https://ift.tt/gXlWi3K
via Abogado Aly Website
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