Question: I was made the executor of my mom’s Will including all her assets, and the beneficiary of her Trust. She also has a pour-over Will. She went through a tedious process to help me avoid having to deal with courts after her passing, and yet now the bank is requesting Letters Testamentary to close her accounts. They haven’t even requested any of the documents I brought, aside from her death certificate. Why does the bank still need Letters Testamentary?
Loraine’s Answer: It sounds like your mother created a Revocable Trust but then failed to take all of the steps needed to move the titles to all her assets into the Trust. That failure would mean that at least some of her assets (like the accounts in question) remained in her individual name. If your mother still owned assets in her individual name at her death, if those assets were not owned jointly with a right of survivorship with someone who survived your mother, and if the assets were not subject to beneficiary designations that directed them to one or more beneficiaries (other than her estate) at her death, then those assets became part of your mother’s probate estate when she passed on.
If assets become part of a person’s probate estate, then the person’s Will has to be admitted to probate so that the nominated Executor can actually become the Executor of the estate and legally handle the assets in accordance with the Will. A Will does not become legally effective automatically, and just because you are nominated in your mother’s Will as the executor of her estate does not mean you automatically have the power to act as the executor. In order to act as the Executor of your mother’s estate, you must first have her Will admitted to probate, have had the probate court issue an order admitting the Will to probate and appointing you as the executor of her estate, had the court take your oath as the Executor, and had the court issue you the Letters Testamentary.
To offer the Will for probate, you will need to present the original Will, along with a Petition to Probate Will (ideally, in Solemn Form), to the appropriate probate court, along with (generally) a certified copy of the death certificate and, in some cases, other documents such as a copy of an obituary or an heirs determination worksheet. I would strongly suggest that you have an experienced probate attorney help you with that process; it’s not usually super difficult, but there are a lot of pitfalls for someone who isn’t familiar with the whole process and what the court will look for.
After you get appointed as the executor and get your Letters of Testamentary, then you should be able to access your mother’s accounts, close them, and eventually turn the assets over to the Trust. You may need to open an estate account first, however, for various reasons. This is far from a detailed discussion of the whole probate and estate administration process. Again, I advise consulting an attorney.
Key Estate Planning Takeaway: For a person who is nominated in a Will to actually serve as the executor of the estate, the Will must be admitted to probate. The court will then issue Letters Testamentary before the executor can proceed with estate administration.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
