You might have recently received a letter from the Office of the New York State Comptroller Unclaimed Funds notifying you that an estate of a deceased family member is entitled to money. In order to obtain any information pertaining to these funds, such as the total sum due and owing to the estate, and to legally claim the assets, you are instructed to obtain letters testamentary or letters of administration. Or, you might be trying to transfer co-op shares onto a new name or attempting to sell a home of the deceased, and everywhere you turn, you run into this prerequisite for letters testamentary.

Securing letters testamentary or letters of administration in NY is not as simple as getting out and getting it done. As you delve into the process, it can quickly start to feel like an extraordinary challenge. As NY estate probate lawyers, we cross this bridge on a daily basis. The following is a brief guide to help you navigate the process.

The starting point is to determine whether the decedent died with or without a will. Dying without a will in New York is also known as dying “intestate.” On the contrary, a decedent who dies leaving a will is known to have died “testate.” If the deceased died intestate, your goal is to secure letters of administration.  On the other hand, if your loved one died leaving a will, you must obtain letters testamentary before any assets can marshalled and distributed.

If no will is found in the decedent’s home at his death, and the people that were closest to the decedent have no knowledge of a will, then in all likelihood, the person died without a will.

Probate or Administration

Are you planning to file a will for the deceased? If so, then the last will and testament must be filed in the Probate Department in the Surrogate’s Court of the county where the decedent died. For instance, if you live in New York, but the decedent lived in Florida, then an estate proceeding must be commenced in the latter, not the former. Also, keep in in mind that the governing law is where the decedent was domiciled (ie lived), is not always where he died. If he died while visiting a family member in California, an estate must be opened in New York, if that is the state where he lived and intended to return to.

The mission of the Probate Department is typically 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 state law, and it was executed without the exertion of undue influence or duress by a party of interest in the will. In other words, this agency is designed to protect the decedent’s estate from corruptive parties. The rules that apply to the administration process are designed to ensure that all entitled heirs receive their fair share of the estate. For instance, if the decedent died without a will, all five of his children must be notified of the proceeding and receive their equal share of the assets.

Letters Testamentary Defined

This is a certified document issued by the Surrogate’s Court to the named executor in the decedent’ last will and testament, officially designating the executor as the representative of the estate. The letters will list your name as the fiduciary (a/k/a the administrator or executor) of the estate, and the name of the decedent and his date of death.

Upon its issuance, the executor can start collecting and transferring assets, selling real estate, paying expenses of the estate, and all other undertakings necessary to accomplish the settling of an estate. Unclaimed funds, banks, brokerages, title companies, co-op boards, all require a certified copy of letters testamentary before anyone can act on behalf of the estate.  The same principle applies when the decedent dies intestate, except that the proper term for this certified document is titled letters of administration.

Duration

The length of time it will take the court to issue letters of administration or letters testamentary from the date the file is marked complete is based on the county and the time of the year the case is filed. Some countries are more backlogged than others, and some administrative staff are more efficient than others. There is more of delay in the summer months as judges are on vacation or are getting ready to go on vacation. Unless you are filing for a small estate, this is not a one-day process. Expect a return period of at least one month after you submitted all the papers to the Surrogate’s Court.

When do I need Letters Testamentary?

In matters concerning assets of an estate, the short answer is almost always.  Letters testamentary or letters of administration are almost always required by an entity when transferring assets from the decedent’s name to someone else. If you attempting to sell the decedent’s real estate, without the opening of an estate and obtaining letters, 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. Majority of the time, the title company will require letters as an exception to clearing title before a closing can take place.

What about a simple transaction such as transferring shares in a cooperative apartment to the decedent’s surviving spouse? If the deceased’s name is the only name listed on the shareholder certificate, an estate must be commenced and letters obtained before any transfer of shares can take place. The same rule applies for commencing a wrongful death or personal injury lawsuit on behalf of the deceased, transferring bank account and brokerage accounts, and even attaining medical records of the decedent. Without letters testamentary, you are not authorized to act on behalf of the estate.

Contact a Probate Lawyer

When dealing with an estate, your first stop should be an estate probate lawyer’s office. 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.