Letters testamentary; Probate

The Process; The Purpose

Many of my clients have questions regarding pending divorce and the right of their spouse to an inheritance. In New York any inheritance one spouse receives is protected under the separate property provisions of the Domestic Relations Law. Unless the inheriting spouse decides to merge the inheritance into a marital asset(which if proper records are maintained can still be traceable and carved out) or place a spouse's name on the account holding said inheritance; the inheritance remains the sole property of the beneficiary spouse.

What are Letters testamentary?

When a person who has a will dies in this state, the Executor or Executrix named in the will must petition the court to allow them to handle the estate of the decedent. The process by which this occurs is called Probate. During the probate proceeding, by petition to the court, the Executor or Executrix asks for some documentation allowing them to proceed with the distribution of the decedent assets. The documentation sought are called Letters testamentary. These Letters or documents give the Executrix/Executor the power to act in the place of the decedent. The petition to get these letters is not complicated, but all of the heirs or potential heirs of the decedent must be notified and sign a waiver indicating that they have no objection to the Executor/executrixes request.

Depending on the complexity of the petition but more on the backlog of the Surrogate's Court, which is the only Court having jurisdiction in this area, Letters should be obtained within a matter of weeks.

Can the Executrix/Executor get a fee for serving?

Statute allows a certain percentage based on the value of the estate, however, most times when the Executrix/Executor is a family member it is not unusual for them to waive their fee.

Is there an Inheritance Tax?

No, not in the state of NY. There is however, an estate tax, which is paid out of the estate and before the beneficiaries receive their distributive shares of the estate.


Do I need a lawyer to do this?

No, not technically. As long as you can prepare the forms yourself and file the appropriate documentation required. It may take you a few times to get it right on your own, and you may decide hiring a lawyer to make it faster is worth your while.

Are there fees involved?

Yes, there is a fee when the petition is filed, based on the value of the estate.

Do I have to do anything after I receive the letters?

Yes, there is a mandatory accounting required one year after letters are issued. A tax attorney or accountant can assist you with the filing. A tax return for the estate must also be prepared and filed.