Letters Testamentary in Texas: How to Get Them and How Long It Takes

If you have been named executor in a Texas will, or someone close to you has died and you need to handle their estate, banks and title companies will soon ask you for one thing: letters testamentary. Here is what they are, how to get them in Austin and the surrounding counties, and when you might not need them at all.

What Are Letters Testamentary?

Letters testamentary are the court clerk’s certificate, under the court’s seal, stating that the executor named in a will has been appointed and has qualified, and on what date (Tex. Est. Code § 306.005). They are proof of your authority to act for the estate (§ 306.007). With them, you can open an estate bank account, collect the person’s accounts, deal with the IRS and, in most independent administrations, sell property.

Letters Testamentary vs. Letters of Administration

With no will, the court must also find that an administration is necessary, for example because the estate owes two or more debts (§ 306.002), and the heirs must be determined first. See proving heirship in Texas.

Who Can Get Letters?

The court generally appoints, in order of priority, the executor named in the will, then the surviving spouse, the main beneficiary, other beneficiaries, next of kin and others (§ 304.001). Some people can’t serve (§ 304.003):

• A person who is incapacitated
• A person convicted of a felony who has not been pardoned or had their rights restored, although a court may still approve a felon named as executor in the will
• A person who lives outside Texas and has not appointed and filed a Texas resident agent to accept service
• Anyone the court finds unsuitable

Out-of-state executors are common. Appointing a resident agent is a simple step we handle as part of the application.

How to Get Letters Testamentary, Step by Step

1. Find the original will and order several certified death certificates.
2. File the application to probate the will and for letters testamentary in the county where the person lived. In Austin, that is usually Travis County Probate Court No. 1 or No. 2. See Travis County probate, Williamson County probate and Hays County probate.
3. Notice. The clerk posts notice of the application, and the hearing is set after the notice period.
4. Hearing. You testify briefly about the death, the will and your willingness to serve. The judge signs an order admitting the will and appointing you. See what happens at a probate hearing in Texas.
5. Qualify. Take the oath (or sign a declaration) and file any required bond before the 21st day after the order (§§ 305.002–305.003). Most wills waive bond for the executor.
6. Get the letters. The clerk issues letters once you qualify. Order several certified copies, because many institutions want an original certified copy, and some want one issued recently.

How Long Does It Take?

In Travis, Williamson and Hays Counties, it often takes a few weeks from filing to letters, mostly because of the notice period and the court’s hearing calendar. A missing original will, a will that is more than four years old, or an objection from a family member can add time. See probating a will after 4 years and lost or missing wills.

What You Can Do With Letters Testamentary

• Get an employer identification number (EIN) for the estate and open an estate bank account
• Collect bank and investment accounts that were in the person’s name alone
• Deal with the IRS and file the person’s final income tax return and the estate’s returns
• Pay valid debts and expenses from estate funds
• Sell, transfer or deed property to the beneficiaries, as the will and the type of administration allow

What comes next is covered in our executor duties checklist. If the will lets you act as an independent executor, you can do most of this without going back to court. In a dependent administration, many steps need court approval.

When You May Not Need Letters at All

• The estate owes no debts except a mortgage: title probate (muniment of title) can transfer property without appointing an executor, and it is usually less expensive.
• No will and a small estate: a small estate affidavit may work for estates of $75,000 or less.
• Everything had a beneficiary: accounts with payable-on-death beneficiaries, life insurance and retirement accounts pass outside probate. See probate vs. non-probate assets.

Frequently Asked Questions

How long do I have to apply for letters testamentary in Texas?

Generally within four years of the death. After four years, a will can usually be admitted only as a muniment of title, and letters generally can’t be issued (§ 256.003; § 301.002).

Can I get letters testamentary without a lawyer in Texas?

Texas courts generally expect an executor to be represented by an attorney in probate, because the executor acts for other people with an interest in the estate.

Do letters testamentary expire?

Letters remain in effect while you serve, but many banks and title companies ask for a certified copy issued recently. The clerk can issue additional certified copies at any time.

Can someone who lives out of state be an executor in Texas?

Yes, if they appoint a Texas resident agent to accept service of process and file that appointment with the court.

What is the difference between an executor and an administrator?

An executor is named in the will and receives letters testamentary. An administrator is appointed by the court when there is no will or no executor who can serve, and receives letters of administration.

Need help with an estate? Call (512) 737-8404, book a free probate consultation, or request a free probate case review.

Sources

• Tex. Est. Code chapter 306 (letters testamentary and of administration)
• Tex. Est. Code chapter 305 (qualification, oath and bond)
• Tex. Est. Code chapter 304 (who may serve)
• Tex. Est. Code § 256.003 (four-year period)

Written by Turner Henington, attorney, Henington Lewis Law Firm PLLC. This article is general information, not legal advice for your situation.