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Do I need to fill out documents for a small estate affidavit to obtain a letter of testamentary?

Arlington, TX |

I have a benifit retirement check that is made out to the estate of c/0 of me. The bank is requiffring a letter of testamentary to open an estate checking account.

Attorney Answers 4


In short, letters are not issued with a small estate affidavit. However, a court order would be entered. A small estate affidavit is used when the decedent did not have a will, there is no petition for personal representative pending or granted, a period of thirty days has passed since the death of the decedent, and the value of the estate is less than $50,000.00. It's a procedure that's quicker than a normal administration. Two disinterested witnesses also have to sign a sworn statement. I would consult with a Texas probate lawyer, to determine eligibility and review this matter.

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If the bank is requiring a letter testamentary to open a estate checking, there must think that there is a will. Is that correct? I say that because a letter testamentary is issued in cases where a will has been admitted to probate. If there is a will, you are disqualified from using the small estate affidavit. If there is no will, and the net value of the estate is less than $50,000, you may use the small estate affidavit. You are not required to have a lawyer for a small estate affidavit, but you must have a lawyer to obtain letters testamentary.

No lawyer-client relationship exists. This answer is intended for discussion purposes only. You must obtain legal advice from your own attorney.

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No letters testamentary are issued in a small estate proceeding. Consult with a lawyer with an Avvo Rating of "10" and a Hubbell Peer Review Rating of "AV, 5.0."

Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services. See for more information.

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Letters of testamentary only come after you probate a valid Will. A small estate affidavit doesn't get you letters testamentary. And the other lawyers are correct: if your husband left a will and you are simply trying to avoid probate, a small estate affidavit is the incorrect procedure. If there is a will, sometimes you can use a proceeding called a muniment of title to transfer property.

If there is no will, and the benefit retirement check and other assets are substantial, it may be worth it to consider administering the estate anyway. I highly recommend you meet with a probate lawyer to discuss your options.

Disclaimer: This post does not create an attorney-client relationship. This post is for informational purposes only and is not intended as legal advice. This post is not a substitute for holding an in-person initial consult with an attorney.

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