Letters Testamentary or Letters of Administration are one of the first documents issued in the probate proceeding. They allow the personal representative of the estate to act on behalf of the estate once the personal representative is appointed by the court. The term personal representative refers to both an executor of a testate estate (an estate where there is a Will) who is nominated in the decedent’s Will, as well as an administrator of an intestate estate (an estate where there is no Will).
Letters Testamentary and Letters of Administration serve the same purpose, and the personal representative to whom they are issued has the same authority. However, Letters Testamentary are issued in a probate proceeding when the decedent died leaving a Last Will and Letters of Administration are issued when the decedent died without leaving a Last Will.
The Letters are not what the name suggests — a typical correspondence. They cannot be simply obtained from an attorney or prepared on your own. While the Letters are typically drafted by an attorney, they are issued by the Court Clerk after a court order following the initial hearing during which the court determines whether the nominated personal representative meets the statutory requirements to serve as personal representative of the estate. A personal representative must be over the age of 18, of sound mind, and have never been convicted of a felony, unless the court determines that the felony conviction should not disqualify the person from serving as the personal representative.
Letters Testamentary can be issued to a qualified resident of any state, but Letters of Administration can only be issued to a Nevada resident. An out-of-state administrator will have to associate a Nevada resident as co-administrator. The court assumes that a person nominated by the decedent is responsible and thus can be trusted to handle the estate, but it is unknown whether an out-of-state estranged person can be reliable, so they need assistance of a co-personal representative who is a Nevada resident.
Once the court approves the issuance of the Letters Testamentary or Letters of Administration, the personal representative must take an oath that he or she will faithfully perform the duties of personal representative. A person who violates the oath may be removed by the court as personal representative and may face legal consequences for their wrongdoing or negligence.
Letters Testamentary and Letters of Administration are then official court documents that show the personal representative’s authority to act on behalf of the deceased person’s estate. Most third parties, such as banks and other financial institutions, will require to see the Letters before releasing any information and taking any action on behalf of the estate. In other words, the Letters allow the personal representative to exercise control over the assets and to manage the assets of the estate.
With the Letters, the personal representative will be able to access the decedent’s bank and investment accounts, pay debts on behalf of the deceased person or the estate, file tax returns, and finally, at the end of the probate proceeding, distribute the assets of the decedent pursuant to the decedent’s Last Will and/or the court order.
Natalia Vander Laan is a Minden attorney.