How to Get Letters Testamentary in a Minnesota Probate

by Flanders Law Firm LLC on December 21, 2015

Hot to get letters testamentaryPerhaps the number 1 question that the law firm receives is:  how to get letters testamentary?

The question usually stems from a failed trip or telephone call to the bank.  The bank is usually the place where the deceased person kept their money – be it a savings, money market, or checking account.  The bank will often tell a person that they cannot get at the money (even if it is needed to pay bills) because they need a court order or letters testamentary.  This usually creates a lot of confusion.

Shouldn’t a personal representative receive the letters testamentary?

Wait a minute:  if the Will nominates a person to serve as the personal representative (executor/executrix) of an estate, why can’t that person just get the “letters testamentary”?

This is usually the next question which my office is asked.  The answer to this question is, yes, but you need court approval first.  Therefore, the short answer to the question of how to get letters testamentary is that the personal representative must receive court approval.

In essence, this is where the complication comes in.  To put is simply, to receive letters testamentary (or “letters of general administration”) a person needs to start a probate.  At this point, many people get confused and think to themselves “I don’t really know what I am doing”.  That is ok, if you are feeling this way, you are not alone.  Most of the people who contact the law firm have very similar thoughts and questions.

Testate versus Intestate

When a person dies, they either die without a Will or with a Will.  If they have a Will, then they died “testate”.  If they died without a Will, they died “intestate”.  Dying with or without a will brings about the application of different areas of Minnesota probate law.  If you have questions about what the terms “testate” or “intestate” mean, you should speak with a Minnesota probate lawyer.

Getting letters testamentary from the court means, again, starting a Minnesota probate.  The attorney will ask the personal representative whether the deceased person had a Will or not – again:  did they die testate or intestate?

Once it is determined if the deceased person had a Will or not, the lawyer will review whether the personal representative was nominated by the deceased person in the Will.  The lawyer will then start thinking about whether the other heirs of the estate will also nominate the personal representative.  This may be confusing, but Minnesota law dictates that some probate proceedings can only be commenced with approval of all of the heirs.  Without complete approval, conflict may arise.  Thus, speaking with a probate attorney can be paramount.

How to get letters testamentary from the court

I have to start a probate to receive letters testamentary?   Unfortunately, the answer to this question is yes.  Of course, this usually brings about more questions from people.  What is probate?  What kind of probate do I need?  Why do I have to go through probate?

The answers to all of these questions are too long for a single post.  The subject of this post is simply:  how to get letters testamentary from the court.

A probate attorney should be consulted.  The person then determines if there was a Will or not.  Then, the person drafts the necessary court paperwork.  Once all of the necessary petitions and other legal paperwork is completed, it must be filed in the county court where the deceased person lived or owned property.  Assuming all of the correct legal paperwork is filed, a court filing fee must be paid.  Furthermore, notice of the probate must be published in a newspaper of general circulation in the county and that fee must be paid.  Usually, a hearing date is set with a judge or a probate registrar.  In the meantime, the interested parties (heirs, descendents, creditors, etc) must be given written notice of the commencement of the probate.

After all of the above is done – and done correctly – the probate registrar or county judge may make a determination that all of the proper steps have been followed and then that person may appoint the person as the official personal representative of the estate and they will get letters testamentary from the court.

If the above sounds simple, I can assure you as a practicing attorney that it is not simple.  Many mistakes can be made and often it is imperative that a knowledgeable probate lawyer is consulted.

Free Initial Consultations

Questions about first time personal representative duties?  Contact the Flanders Law Firm today.  The firm offers free consultations to all potential clients and Dakota County probates.  Call (612) 424-0398.

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