Dear Mr. Premack: My parents had Wills with each being the beneficiary of the other. They were drafted in Bexar County where they lived. The wills stated that when they pass, the estate is left to my sister and me. I was named the executrix for each (without bond). Mother died last year, and our father resides in a nursing home. He is 91 and unable to make decisions and we have a notarized doctor’s statement to that effect. My sister was granted the authority to make his medical and financial decisions. There is no house, rather, just the bank accounts. Also, we have had problems cashing checks that are payable to my mother. My questions are these: 1) Do we need a Letter Testamentary? 2) What exactly is it, and is it necessary to go to Probate Court to get it? 3) Will it allow me to go about exercising my duty as executrix? 4) Does all of this have to be done in Bexar County? – PJS
Your parents were wise to pre-plan. They gave your sister authority to care for their medical and financial needs while still living, and gave you authority to settle their estates after their deaths. As you might guess, every family’s situation is different – so it is very useful to have instructions from your parents regarding their wishes.
Your mother has already died, and her Will left all assets to your father who has outlived her. The bank won’t handle the checks made out to your mother because they do not want liability for paying the funds to the wrong person. They ask for a Letter Testamentary to protect themselves, so yes, you need a letter testamentary. Getting a Letter Testamentary also allows you to place all of the bank accounts into your father’s name as sole owner.
A “letter testamentary” is a certificate from the county clerk which states that your mother’s Will has been admitted to probate, that you (as the person nominated in the Will) are officially the Executrix, and that the appointment is in full force. A Letter Testamentary bears the signature of the clerk’s deputy and the raised seal of the county. Probate of her Will is the only way to get a letter testamentary.
With a Letter Testamentary in hand, you are authorized and required to fulfill your duties as Executrix. You can access any property or accounts that were held by the decedent (your mother). Having a Letter Testamentary allows you to open a bank account for the estate, and the bank will then allow you to deposit checks written to your mother or to her estate.
Venue for the probate is in the county where your mother resided prior to her death. If she lived in Bexar County, you should probate her Will in Bexar County even if you as Executrix live in a different county. It is her residence that counts for location of the probate, not your residence.
Once your mother’s estate is settled and all the assets are in your father’s name, your duties as Executrix of your mother’s estate are completed. At that point, your sister’s authority as Agent under your father’s durable power of attorney takes priority. She becomes the manager of his assets, using them for his benefit and comfort during the rest of his life. The tasks again shift upon your father’s death, when you go through the probate process as Executrix of his Will. It is only then, after both of your parents have died, that any remaining assets are divided between you and your sister.
If avoiding probate of your father’s Will seems desirable, then your sister (as his agent) may be able to use his durable power of attorney to set up a living trust for his assets. This can only be done if the durable power of attorney explicitly allows her to establish a trust for him. If so, the trust would state that it is for his sole benefit during his lifetime, and that upon his death the trust assets pay to you and your sister. If his accounts have been transferred to the trust while he is alive, they can pass under the trust’s authority without the need for letters testamentary after he dies.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, October 29, 2010