my step mother died about 2 weeks ago, and my father is trying to get the funds from her bank account. it's not much, maybe $2000. he plans to use it to pay for the funeral expenses. she did not leave any documents saying to whom the money is to go to. he went to the bank and they told him that he needs to get a letter of testimony and that one could be found online. is this true, or does he have to hire a lawyer and take legal action?
I'm very sorry for your loss. Letters Testamentary is what the bank has asked for. They are not obtained online. These Letters are issued by the County Clerk when the probate court appoints an individual to act as the executor or administrator of the estate. While it is far easier to obtain them when there is a Last Will and Testament, Letters of Administration are the equivalent that you could seek in the absence of a Will. Either route requires the help of an attorney, and even with a Will, the cost of the process would chew right through that $2000.
You don't mention any other assets or debts of your step-mother, and those are facts that will significantly determine whether a less formal procedure is available to your family. You also do not provide enough of the facts concerning your mother's heirs to really be able to suggest one of these alternatives.
In many cases like yours, when the facts permit, the bank will accept a Small Estate Affidavit or possibly even an Affidavit of Heirship. Even these alternatives are very likely going to require some assistance by a probate attorney. I would suggest that you begin contacting probate attorneys in and around the county that your step-mother resided in when she died. You'll certainly find one or two that are willing to offer you a free consultation to gather some of these important facts and set you on the right path.
This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.
3 lawyers agree
Estate Planning Attorney
In Texas, "Letters Testamentary" are issued to an executor by a Probate Court (or County Court, if no Probate Court), after a multistep process. Look at the Will to determine who the decedent designated as the Executor; if this person is willing and able to serve, and meets several statutory requirements (filing an Application with the Court with the original Will; serving Notice(s); presenting evidence/proof at a Court hearing with witnesses if necessary; possibly post a bond; and finally, file an Inventory with the Court of all Estate property, within 90 days of being appointed Executor). Administration of an Estate can be either Independent (less costly) or Dependent (more costly). If no will, then the process is even more involved (Heirship Proceeding; Appointment of Attorney Ad Litem by Court; and then either an Independent or Dependent Administration) before an applicant can receive "Letters of Administration" (the corollary to Letters Testamentary, when there is no Will). It may be worthwhile to look at a Small Estate Affidavit, particularly if the estate is only a bank account valued at $2,000. I know that in the probate clerk's office in Harris County there are template forms for the public. I would imagine that in smaller counties where there is no probate clerk, the county clerk may have small estate affidavit (SEA) forms as well. As you may already know, the SEA is useful when a decedent dies without a will (intestate) and with an estate that is not worth more than $50,000, excluding the homestead and any exempt property. The estate can be disposed of through use of the SEA as long as no application for administration has been filed or granted. The SEA sets out who are the distributees of the estate and each distributee's relative share of the estate, and may not be filed until 30 days have passed since the decedent's death. A distrubutee is entitled, upon presentment of a certified copy of the SEA, to collect any property of the estate. Although the SEA is a simple and quick way to resolve an estate, it is not appropriate for all intestate situations; it is not helpful when real estate is not the decedent's homestead (rental or investment property); it should not be used when there is the potential for an unknown heir being discovered in the future. If SEA is the right choice for you, then it should be filed with the court clerk (probate court clerk or if none, then usually a county court clerk). At some point, the court will "approve" the SEA. The distributee may order a certified copy of the approved affidavit to use to collect and wrap up any other business of the estate. I hope this helps, and I am sorry for your loss.
2 lawyers agree
Estate Planning Attorney
Both of the prior posters are absolutely on point with regard to alternatives available to your father. As the first poster suggests, contact an attorney who practices in the probate area near where you live. You should be able to get some free advice over the phone or in person to help you evaluate which route to take.
Hope this helps. If you think this post was helpful, please check the asnwer was a good answer tab below. Thanks. Mr. Geffen is licensed to practice law throughout the state of Texas with an office in Dallas. He is authorized to handle IRS matters throughout the United States and is licensed to practice in US Tax Court as well as The Court of Claims. This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.
1 lawyer agrees
Elder Law Attorney
Not sure what aleter of testimony is, but if you mean a letter testementary, my gues witthout knowing law in texas is thisd is N OT true. aleter testementary genraly can only be acquired through thwe court. I would discussx with alawyer in yyourstate. while this couldbe true, iwould erronthe side of it isnot.
Sonya Mittelman is aNew York attorney and hence her answers ar ebased on New Yotrk Law. Please seek advice from acompetant attorney in youru own state
Personal Injury Lawyer
Both of the first responders are correct and give you a good overview of what is involved.
In my judgment, you may be able to take out a simple, small estate administration, which will allow you to get the letters testamentary that are required by anyone dealing with property of the estate.
It will cost you some of the estate money for filing fees and attorney fees, but after the filing of the proper documents, it is all pretty automatic from there.
I'm sorry for your loss.
Good luck to you.
Mr. Younger is licensed to practice law in Texas. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Younger strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.