Wills & Guardianship: 214.227.6400
9400 N. Central Expy., Ste. 1308
Dallas, Texas 75231
I can't count the number of times a client has contacted us and said something to the effect of:
"I went to the bank to collect the account because I am the executor named in the will. I showed the original will to the banker, however, the bank would not release the funds to me until I gave it a letter of testamentary from the judge. So I went down to the probate court and asked the clerk if the judge could write me a letter testamentary. The clerk smiled and said that she could not give me legal advice but I would need an attorney."
It sounds so simple, just get a letter from a judge. In realty the process of obtaining letters is quite formal, as it should be for such an important responsibility.
What are Letters Testamentary? Letters Testamentary are the formal documents issued to an executor of an estate by a court having jurisdiction over that estate. They are issued by the court only after the court has considered whether the will that is being offered for probate was validly executed and whether it is the last will written by the decedent. The court must also determine the type of administration that will occur and whether the named executor is qualified to serve as the executor of the estate.
How does one get Letters Testamentary? One must file a formal application with the court asking it to admit the will to probate and to clothe the executor named in the will with the authority to act on behalf of the estate by issuing letters testamentary to that person.
Can I get Letters Testamentary if the decedent did not leave a will? Yes, but in that situation they are not called "Letters Testamentary" as their is no last will and testament. Instead, the court will issue "Letters of Administration" to the applicant. Letters of Administration do the exact same thing as Letters Testamentary and both are equally acceptable to financial institutions.
Do I need a lawyer to get Letters Testamentary or Letters of Administration? It depends on the Court and the nature of the estate. The Courts that require an attorney hold that in serving as the executor or administrator of an estate, you may be advancing the interests of the other beneficiaries named in the will and perhaps the creditors of the estate. Therefore, they hold, you cannot represent yourself "pro se" as the executor of the estate. There appears to be case law to the contrary. See Ex Parte Shaffer, 649 S.W.2d 300 (Tex. 1983). Regardless, if you examine the fiduciary duties and potential liability involved when serving as the executor, you may want an attorney to help you with this process.
What type of lawyer do I need to probate a will? A probate attorney or a "wills, trusts and estates attorney" is a type of lawyer that assists executors, administrators, beneficiaries and creditors of an estate. Since the fiduciary duties involved in probate are so exacting, an attorney that has lengthy and significant experience in this area is important.
How do I start the process of obtaining Letters Testamentary? Dallas Probate Attorney Michael Duran believes that obtaining Letters Testamentary should be an easy, straightforward process, especially if the decedent left a will. Therefore, you need only complete one of the Quick Start Worksheets listed in the right hand column of this webpage and send it to us, along with a copy of the will if there is one. we will then contact you to discuss what type of probate you will need.