The executor of a will has no right to act in that capacity, unless and until he obtains the letter of testamentary.In legal language, the term 'estate' denotes the real and personal property of a deceased person. Administering the estate of a deceased person may become a cumbersome procedure, especially if there is no will. The term probate refers to the judicial procedure for validating a will, and administering the estate of a dead person according to the terms of the will. If there is no will, the court will appoint an administrator to manage, divide, and distribute the assets. If the total value of the estate is less than a specific amount, the probate procedure may not be necessary. The same applies to certain types of property. The rules regarding probate may vary from one state to another.
When a person dies, his/her will has to be probated as soon as possible. Usually, the time frame is four years from the date of death. Property owned by the deceased person in his/her sole name, needs to be probated, so that the title can be transferred to the beneficiaries. Though there are exceptions to this rule, in most cases, the probate process is necessary. Usually, the probate procedure is done at the place of permanent residence of the deceased person. The person who is in possession of the will (can be the executor named in the will, or a personal representative) has to file a petition before the local court to probate the will.
The executor or personal representative files a probate petition, along with the official will and a certified death certificate. The executor must apply for a letter of testamentary, which provides the legal authority to gather the assets and distribute them according to the terms of the will. Otherwise called letters testamentary, a letter of testamentary is a certified document granted by the probate court, authorizing the executor of a will to collect and distribute the assets of a deceased person.
Certified copies of the letter of testamentary as well as death certificate are needed for banking and real estate transactions that involve the assets of the deceased person. So, the executor needs to produce these documents for obtaining possession of such assets. Once the executor gathers the assets on behalf of the estate, he needs to appraise them and pay off the debts and taxes, before transferring the assets to the beneficiaries, according to the terms of the will.
It is the court's duty to assess the competency of an executor, so that he can receive court documents like letter of testamentary. According to law, an executor of a will must be a mentally competent and physically fit adult. He must not be a convicted felon. In some cases, convicted felons are considered competent; if they have been duly pardoned, or if their civil rights have been restored.
As mentioned above, the executor named in the will has to file a petition before the probate court, for probate of will and issuance of letter of testamentary. Usually, online applications for letters testamentary are not allowed. Though the procedure may not be the same for all states, here are some guidelines that may prove useful.
- Get a form petition for probate from the court clerk's office and fill in the details. In most cases, you need to provide details about the deceased and his/her will; and a list of beneficiaries, legatees, and devisees. You may be required to notarize the petition, before filing it.
- File the petition along with the required fee at the court's clerk office. Along with the petition, you must provide the official will, and details of your appointment as the executor.
- In some states, non-residents are not considered competent as executors. You may be allowed to continue as the executor, if you appoint a resident agent in the state. You may also be required to sign an executor's bond.
- Once done, you must send proper notice to all concerned and publish a probate notice in the newspaper. File the proof of service, as well as proof of publication before the court.
- Appear before the court for the initial probate hearing to verify the competency of the executor. If the executor is approved according to the state rules, the court issues the letter of testamentary.
- If there is no valid will, an heir of the deceased person may file the petition for probate. In that case, the court will issue a letter of administration, instead of the letter of testamentary. While the powers granted by the court to the executor through a letter of testamentary are derived from the will, in case of a letter of administration, the powers are decided according to the state laws.