This question is one of the most commonly asked questions that I hear as a Minnesota probate attorney. Here is the typical scenario where this comes up. Mom or dad has died. Now the surviving spouse dies. The surviving spouse (let’s say it is mom in this case) left a bank account that the children know about. One of mom’s children goes into the bank to close down the account and split the money with the siblings. The bank tells the child that the bank account is now frozen and that the bank needs letters testamentary in order to transfer the money to mom’s kids. This is usually where I get a phone call, asking me what letters testamentary are, how do we get letters testamentary in Minnesota, and how much does it cost to get letters testamentary?
The purpose of this blog post is to answer those questions, discuss how you can avoid that situation, or, if you find yourself in that situation already, how you can get letters testamentary in the fastest way possible.
What Are Letters Testamentary?
Letters testamentary is a somewhat misleading term. It sounds like it is a set of documents, when, in reality it is simply a one-page document that the court issues, giving a family member the authority to administer the estate of the decedent (the person who died).
When Do You Need Letters Testamentary?
In Minnesota, you might need letters testamentary if someone has died with assets in their name alone (that don’t transfer automatically by beneficiary designation), and those assets total more than $75,000. You may also need letters testamentary if that person died with real estate owned in their name alone. Click here to read about when probate may be needed in Minnesota.
How Do You Get Letters Testamentary?
You might be wondering at this point, “How do I get letters testamentary?” If the Will nominates you as Personal Representative, can’t you just get letters testamentary automatically? No. Unfortunately, you cannot just get letters testamentary automatically in Minnesota even if you were named as Personal Representative in the Will.
A court must appoint someone to act as Personal Representative and to receive the letters testamentary. So how do you get a court to appoint you as Personal Representative so you can get letters testamentary? You have to start a probate proceeding.
Starting a Probate Proceeding
Generally speaking, you will need to file either an Application or a Petition with the Court to begin the Probate. You will also need to provide notice of the proceeding to all of the interested parties, including family members, beneficiaries, and even creditors. You also have to publish notice of the probate in a local newspaper for two consecutive weeks. Once the proper notice has been provided, you have to file several affidavits with the Court, showing that you have complied with the strict rules regarding notice for a probate in Minnesota. Once the Court is satisfied that you have complied with the requirements for initiating the probate, the Court will then issue Letters Testamentary or Letters of General Administration, depending on the circumstances.
Why Is It Called “Letters Testamentary”?
There are two ways to die in the eyes of the probate laws. You can either die with a Will (testate) or die without a Will (intestate). If you die with a Will and your family needs probate, the Court issues Letters Testamentary. If you die without a Will (intestate), then the Court issues Letters of General Administration.
What is the Difference Between Letters Testamentary and Letters of General Administration?
Other than the title of the document there is no difference between Letters Testamentary and Letters of General Administration. Both documents give the Personal Representative of the estate (the executor) the authority to administer the estate under Minnesota law. If the person who died had a Will, the Court issues Letters Testamentary. If the person who died did not have a Will, then the Court issues Letters of General Administration.
How Long Does It Take to Get Letters Testamentary?
It usually takes about 4 to 6 weeks for the Court to issue letters testamentary. The reason it takes so long for the Court to issue letters testamentary is because you have to wait for the notice of the probate to be published with the newspaper for two weeks. You also have to wait for the Court to process all of the paperwork. The Court may also have to set the matter on for a hearing if you filed for Formal Probate instead of Informal Probate.
Is There a Quick Way to Get Letters Testamentary?
This will vary from County to County. Some counties will allow you file all of the opening paperwork, mail the required notices (and file the appropriate affidavits), and then use the Proof of Publication, rather than the Affidavit of Publication (which you have to wait several weeks for from the newspaper). This can speed the process up incredibly. There have been some instances where I have been able to obtain Letters Testamentary in a matter of days, rather than weeks. Whether you are able to obtain letters testamentary in a few days versus a month will depend on the County and it will depend on the circumstances of the probate case. For instance, the Court will probably not issue letters testamentary in a matter of days if it is clear that there are questions about the validity of a Will, or if there are likely going to be objecting parties. If there is an emergency and you need to handle something on behalf of an estate in an urgent manner, you should contact our office immediately to discuss the various options you have.
Why Do I Need Letters Testamentary?
Aside from the bank requiring you to provide letters testamentary, you will also need letters testamentary in order to sell real estate owned by the decedent. In order to transfer real estate from someone who has died to a living person (or entity), you must sign a Personal Representative’s Deed and record it with the County along with several other documents – one of which is either Letters Testamentary or Letters of General Administration.
Do I Need an Attorney to Get Letters Testamentary?
You might not need one, but you will definitely want one. If you represent yourself when you are trying to get letters testamentary, you may be successful in getting the letters testamentary, but you may also fail to provide the proper notice to a creditor, or to a family member, or make some other mistake along the way. There is no way for the Court to determine whether you have provided proper notice to interested parties because the Court does not know who those parties are until you tell the Court. If you make any mistakes in the application process, you can be held personally liable for any loss created by your mistake. For instance, if you fail to notify a creditor of the probate proceeding, you get appointed as personal representative, and then you distribute the money to you and your siblings, that creditor can sue you personally to recover their claim. At that point, you will be trying to ask for the money back from your siblings to pay the claim.
In short, you should always consult an experienced probate attorney to help you get letters testamentary in Minnesota. There is simply too much risk to go it alone. If you find yourself in the position of needing letters testamentary in Minnesota, contact our firm today for a free initial consultation to discuss how we can help you get letters testamentary as soon as possible.
How Much Does It Cost to Get Letters Testamentary?
How much it costs to get letters testamentary will depend greatly on the circumstances surrounding the facts of your case. If there is an emergency and you need them quickly, this will typically increase the cost. If there is no rush, and you simply need to begin a probate to obtain the letters testamentary, then the cost can range from a couple thousand dollars to tens of thousands of dollars depending on the size and complexity of the estate. These fees are paid out of the assets of the estate. If you don’t have access to the assets of the estate (because the bank account is frozen) you can be reimbursed for any personal money you spend on getting appointed as personal representative. Don’t worry. Probate isn’t all bad, you may also be compensated for your time spent serving as personal representative.
How Can I Avoid Needing Letters Testamentary?
If you do not need letters testamentary yet, here are three quick tips on how to avoid probate costs. The only way to avoid needing letters testamentary is to do the proper planning before you die. Having a revocable trust, using beneficiary designations, using transfer on death deeds, or re-titling ownership of property are common methods to avoid needing letters testamentary.
We always offer a free initial consultation to give you an analysis of your case and we can provide a fairly accurate estimate of what the costs of the case might be. Feel free to give us a call to discuss your case in more detail if you are concerned about what the cost will be to get letters testamentary in Minnesota.
About the Author
Zach Wiegand is a Minnesota probate attorney and estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that also handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie and the South Metro as well as clients in Woodbury, Lake Elmo, Maplewood, Oakdale, St. Paul and the East Metro. Our firm has offices in both Burnsville and Woodbury (Lake Elmo). The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County and most other counties in the Twin Cities Metro area. Zach has been named a Super Lawyer – Rising Star for 2017, 2018, and 2019. In addition, Zach is a member of the Society of Financial Service Professionals, the Twin Cities Estate Planning Council, and WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at firstname.lastname@example.org or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337 and in Woodbury/Lake Elmo at 8653 Eagle Point Boulevard, Lake Elmo, MN 55042.