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“Letters”: How to Get Letters of Testamentary

I often get frustrated clients that come to me with a story that goes something like this:

“My father died and I am his only child. He has a bank account and a stock brokerage account. His Will leaves everything to me and I even gave the financial institutions a copy, but they won’t turnover his money and stocks to me, they say I need to get ‘Letters.’ What are ‘Letters,’ and where do I get them?”

When someone at a bank or brokerage firm is asking you for “Letters,” they are using the short term for “Letters of Testamentary.” You get them by formally probating the Will, which, in Texas, is a fairly quick but paper-intensive process. Your attorney first petitions the Probate Court or County Court to accept the Will into probate. Once filed there is a ten day waiting period after which you have a short hearing to “Prove Up” the Will. At the Prove-Up hearing, the person asking the Will to be admitted to probate will swear to a number of things, most of which make sense.

First, you swear that the person making the Will is deceased. That make sense as I don’t want my kids probating my Will and dividing my estate while I’m still up and around. You also swear the deceased lived or died in the county you are probating the Will for venue purposes. You swear the Will is the last Will and not the next to the last Will, and that the Will submitted wasn’t revoked. Seems to make sense also. You have to indicate whether or not the deceased had children after he made the Will or whether the deceased adopted children after the Will. Also, you can not get Letters if you are a convicted felon or the ward in a guardianship.

Once all this is done, the Judge signs a bunch of papers, swears in the Executor and grants an Order. More paper. Then you go to the Clerk’s office and get a Letter of Testamentary. This is just a one-page document saying who the Executor of the estate is. Letters might be said to be your Red Badge of Courage that everything has been done correctly and gives comfort to the bank that they can give you the money and not be sued. So why didn’t the bank just give you the money in the first place?

Let’s say you gave the Will to the bank and they gave you $100,000 that was in you dad’s account.   They know you are the only child and they have a copy of the Will. Everything is great right? But then a month later a representative from some charity shows up at the bank with a Will written by your old man the day before he died, and that Will leaves everything to the charity and leaves you nothing because the old man never forgave you for making fun of him wearing black socks and flip flops to the beach.

Now the bank is in a pickle. They gave you the money and can’t get it back because you went to Vegas with your new mail order bride from Russia and lost it all plus whatever you had in your 401k. The bank examiners show up the next day, and because of this potential lawsuit, the bank gets a lower rating and the CEO instead of taking his wife on vacation at Port a Prince has to go to Possum Kingdom. All a sad state of affairs. But had you gone through probate and given the bank Letters, the bank would know that everything was done proper, and if they were accused of wrongdoing they could say they were following court orders. Which they were. The charity could sue you to get the money back, but the bank is protected.

And that my friends is why the bank requires you give them “Letters.

To find out more on Wills, Trusts, Estate Planning and Probate, contact us here or call (940) 387-3518.

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