When probating a will, it is necessary for one person to be appointed as the executor. An executor is the person who will oversee and regulate the process of managing the estate and distributing the property after the person passes away. The executor is usually mentioned specifically in the person’s will.
Generally speaking, the executor must obtain a letter of testamentary, which provides legal documentation and proof that they are in fact the executor of the estate. This documentation will be used when the person is dealing with banks, beneficiaries, creditors, and other parties who are part of the probate process. The letter of testamentary can help prevent various legal disputes and conflicts that can arise with the administration of the estate.
How Can I Obtain a Letter of Testamentary?
State laws may vary with regard to how letters of testamentary are issued and obtained. Typically, letters of testamentary must be obtained in person, as they generally are not available through online forms. The letter is typically issued by the probate court, which is the court that will be handling the will documents.
The executor or administrator of the estate needs to bring various documents with them when they seek a letter of testamentary. These should include the will documents and a valid death certificate of the deceased person. It is important that the executor obtain the letter of testamentary as soon as possible. This will help when it comes to performing their duties and tasks, and may protect against executor liability.
What If I Have Any Legal Issues Regarding Estate Administration?
Many legal issues can arise during the estate administration process. For instance, there may be will contests, disputes over property distribution, tax issues, and various other conflicts. In most cases, the estate executor can handle certain issues and even some disputes.
This can happen as long as doing so is within the authority granted to them under the will and according to the letter of testimony. However, larger or more serious legal conflicts may require additional litigation or lawsuits.
One of the main conflicts that can arise in connection with estate administration is whether the person claiming to be executor is fit for that role. In this type of situation, having a letter of testamentary can provide the exact type of proof needed to confirm that they are the appropriate person to perform the tasks. Their ability to perform various estate administration tasks may hinge on them having the letter of testamentary as support.
Can an Executor Be Removed from their Position?
On the other hand, even with a letter of testamentary in place, it is still possible to challenge and remove an executor from their position and role. Removal of an executor can occur in cases where the executor has committed a violation of some sorts or is unable to fulfill their legal duties as executor.
Again, state laws may vary with regards to the duties and limitations on the role of an executor. However, certain conduct will generally lead to a removal of an executor. For instance, an executor may be removed from their position for conduct such as:
- Misusing the estate funds or property;
- Commingling their own funds in the estate account;
- Committing fraud or other legal violations in connection with the estate;
- Mismanaging estate funds or property;
- Making serious errors or oversights with regard to property distribution;
- Failing to perform their duties as executor; and/or
- Various other issues.
In cases of serious violations or in cases where the executor has misappropriated or stolen estate assets, it may even be appropriate to sue an executor of the estate.
If an executor is to be removed from their position, then the party making the challenge will usually need to present their argument and reasoning to the probate court. This must be supported with a proper reason to remove them, as well as any evidence which will support the request. The executor does, however, have a chance to defend themselves and show why they shouldn’t be removed from the position.
In cases where no executor was actually named to begin with in a will document, the probate court will typically select a person to act as the estate administrator. Disputes over executor issues can be somewhat common; they can however create delays or other issues in the overall administration of the estate and distribution of the estate property.
Do I Need a Lawyer for Help with a Letter of Testamentary?
Letters of testamentary are very important for the estate administration process. You may wish to hire a wills, trusts, and estates lawyer if you need help obtaining a letter of testamentary. Your attorney near you can provide you with legal advice and representation when it comes to the overall probate process. Also, if you encounter any legal conflicts or disputes, your attorney can provide you with guidance during court hearings or during litigation.