Letters testamentary and letters of administration do the same job. Both are the court's certificate that a named person has authority to act for the estate of someone who died. The difference is how that person got the job:
- Letters testamentary go to an executor named in a will that the court has admitted to probate.
- Letters of administration go to an administrator the court appoints when there's no will, or when the will names no executor who can serve.
Banks, brokers, title companies and government agencies will ask to see one or the other before they release or transfer anything. Executors and administrators are both called the personal representative: the person legally in charge of settling the estate.
Side-by-side comparison
| Letters testamentary | Letters of administration | |
|---|---|---|
| Issued when | There is a valid will naming an executor who qualifies | There is no will, or no named executor can serve |
| The person is called | Executor | Administrator |
| Who gets priority | The person named in the will | Set by state law, typically the surviving spouse, then heirs, then others |
| Bond | Can be waived by the will in some states, e.g. Texas (§ 305.101) | Generally required, e.g. Texas (§ 305.101) |
Who the court can appoint
Each state sets an order of priority. Texas spells it out in full (Tex. Est. Code § 304.001):
- the executor named in the will
- a person the will names as administrator
- the surviving spouse
- the principal devisee (the main beneficiary under the will)
- any devisee
- the next of kin
- a creditor
- any person of good character living in the county who applies
- any other person who isn't disqualified
- a public probate administrator
If several people are equally entitled, the court picks the one most likely to administer the estate well, or appoints more than one.
Getting letters, step by step
- File in the right court. Apply in the county where the person lived. In New Jersey that can be the county surrogate's court or the Superior Court (N.J.S.A. 3B:10-1). In Ohio, the probate court has exclusive jurisdiction to grant letters testamentary and of administration (Ohio Rev. Code § 2101.24). For other states, see which court handles probate.
- Get the will admitted, if there is one. What it means to probate a will covers this step.
- Qualify. In Texas, a personal representative qualifies by filing an oath (or a declaration), filing any required bond, and getting the judge's approval of that bond. An executor who doesn't have to give a bond qualifies just by filing the oath (Tex. Est. Code § 305.002).
- Receive the letters. Texas letters are a clerk's certificate, under the court's seal, stating that the person has qualified, the date they qualified, and the name of the person who died (Tex. Est. Code § 306.005). For letters testamentary, Texas courts are to grant them before the 21st day after the will is probated (§ 306.001).
Order several certified copies. Each bank or agency usually wants its own.
Probate bonds
A probate bond is a guarantee, usually backed by a surety company, that the personal representative will carry out their duties faithfully and honestly (Ohio Rev. Code § 2109.04(A)(1)). It protects the heirs and creditors if the estate is mishandled. The rules differ by state:
- Texas: a bond is generally required before letters issue. Letters testamentary issue without one when the will says no bond is required and the court finds the executor qualified, and a corporate fiduciary (a bank or trust company acting as executor) never needs one (Tex. Est. Code § 305.101). The bond can be reduced when estate assets are deposited with an approved depository (§ 305.155).
- Ohio: unless the law, a court order or a local rule says otherwise, the fiduciary files a bond before letters issue, in an amount the court sets. It must be at least double the probable value of the personal property plus the annual real property rents that will come under the fiduciary's control (Ohio Rev. Code § 2109.04(A)(1)).
Ask the court what it requires before you apply so the appointment isn't held up.
After the letters are issued
With letters in hand, the personal representative can act: open an estate bank account, collect assets, deal with creditors, and eventually distribute what's left. This is usually when the deadlines start. Pennsylvania, for example, requires notice of estate administration to beneficiaries and heirs within three months after letters are granted (Pa.R.O.C.P. 10.5). In most states the creditor claim period runs from the published notice that follows the appointment; see how long probate takes.
Before the first attorney meeting
The petition for letters needs the will, death certificates, heir details and an asset list. EverSettled helps you gather those before the first consult, so you're attorney-ready faster. Once the letters are issued, it guides the executor or administrator through the rest of the admin, from notifying institutions to closing accounts, which shortens the path to the inheritance.
Frequently asked questions
How do I get letters testamentary?
Apply to the probate court in the county where the person lived, have the will admitted to probate, then qualify by taking the oath and, if required, posting a bond. The court clerk then issues the letters.
How long does it take to get letters?
It depends on the court's calendar and whether anyone objects. Texas sets a target of granting letters testamentary before the 21st day after the will is probated (Tex. Est. Code § 306.001), but the hearing has to be scheduled first.
Can I act for the estate before letters are issued?
Generally no. Banks and agencies rely on the letters as proof of your authority. Small estates may be able to use an affidavit instead; see small estate affidavit limits.