Obtain Letters of Testamentary in NY: A Guide for Executors

Obtaining a letter of testamentary is one of the first steps an executor has to take when going through the probate process.

Oftentimes executors find themselves confused by the number of forms one has to fill out, and the certified documents they need to file a petition all while dealing with the loss of a loved one.

In this post, we'll make it clear what a letter of testamentary is, what forms you need to obtain them, and other frequently asked questions executors have about the different kinds of letters you need to administer an estate legally.

Let's get into it.

Letters testamentary are issued from the Surrogate’s Court in New York that verifies the appointment of the executor to manage the distribution of a deceased person's assets and property.

This official recognition provides the executor legal authority to act on behalf of the deceased's estate and carry out their final wishes.

Only after you have obtained approval from the Court can you retrieve the estate’s assets and administer them accordingly. These actions may include:

• Opening an estate bank account
• Accessing accounts of the deceased
• Paying debts of the deceased
• Collecting claims of the deceased
• Sell real property

To obtain a letter of testamentary in New York, you will first need to file a petition for probate to the Surrogate's Court in the county where the deceased resided.

1. File the original will and original death certificate: The first step in obtaining letters of testamentary is to file the deceased person's original will and a certified copy of their death certificate with the Surrogate's Court in the county where the deceased lived.
2. Petition for probate: Attached to the original will, and death certificate - the executor must include the petition for probate. You can find the petition for probate (letter testamentary) form here
3. Pay the court filing fee: The court will require a filing fee for the probate petition, which ranges from $45 to $1,250 depending on the size of the estate. Ultimately, the executor is responsible for paying the filing fee - but is to be reimbursed by the estate.
4. Attend court hearing: If the court approves the probate petition, it will issue letters of testamentary, and you - as the executor, will now be able to start the estate administration process.

In the event that the deceased passed away in a state other than New York, and you have a letter of testamentary from that state, you are still required to obtain a letter of testamentary for the state of New York. This is typically done by verifying the out-of-state LoT via an ancillary probate proceeding.

Note: that the only person that can apply for letters is if they are the appointed executor as per the deceased’s will, and they meet the legal requirements (over the age of 18, not a convicted felon, etc.).

How long will it take to get Letters Testamentary?

Generally speaking, obtaining a Letter of Testamentary in New York can take around 3-5 weeks, assuming the will is not being challenged. If probate is contested in any way ie. wrong info on forms, missing hearings, will being contested, then the process may take months to complete.

Preliminary Letters of Testamentary are similar court orders that are issued when the executor has proven that they need access to estate assets immediately. For example: shares held by the deceased are plummeting, and the beneficiaries convened with the executor and realized they need to access and sell those plummeting shares now.

In addition, these letters are usually only valid for six months. Having such a limited timeline means that these letters are only issued in situations that require immediate action.

Similar to applying for probate, you will need to submit an “Application for Preliminary Letters Testamentary.” If you are looking to expedite the process, you will submit an “Affidavit of Urgency,” which outlines why your application should be given priority.

Within the application itself, the applicant is required to provide the following information:

• Their rationale for applying preliminary letters
• A list of the property of the estate
• An official notice to all parties involved in the estate
• An estimate of funds received from rent that would be collected by the estate for the next 18 months

For a more detailed list of what is required for the application of the preliminary letter, you can review the relevant legislation–NY SCPA § 1412.

The most common circumstance that will trigger the issuance of preliminary letters is a will contest. If someone is claiming that the will–which names you as the executor–is invalid, then you could wait for over a year for the court to determine the will’s validity.

In the interim, a preliminary letter will be issued to ensure that the deceased’s property is not neglected and the estate is properly managed.

In addition to will challenges, any other sort of delay in obtaining the Letter of Testamentary that could have negative ramifications will likely result in a preliminary letter being issued. Some examples include:

• When the witnesses to the will cannot be identified
• When the house of the decedent could go into foreclosure if the executor does not act
• When certain individuals cannot be found and are needed to be notified for the LoT to be granted

Need help applying for a letter of testamentary? ClearEstate can help.

At ClearEstate, we house a team of probate professionals that can help you successfully apply for Letters Testamentary of Preliminary Letters Testamentary in the state of New York. We offer convenient, easy-to-understand services that are more cost-effective than hiring an attorney. Schedule a free consultation with us today.