Banks and other financial institutions will often say that letters testamentary are required to access a bank account for someone who died. However, this is not always true.
The phrase “letters testamentary” or “letters of testamentary” refers to a legal document issued by the probate court. Technically, it is authorized by the probate court and issued by the clerk’s office.
Letters testamentary evidence that you (or someone else) was appointed to administer the estate. Think of the letter like a power of attorney, but for someone who died. The letter can be provided to third parties who can rely on it when dealing with you with respect to the estate.
One of the first steps when someone passes is to secure their property. This typically includes accessing bank accounts to identify and/or stop automatic payments and to have a source of funds to pay for funerals and other last expenses. Thus, it is usually you, the party who needs to access the decedent’s funds that initiates contact with the bank.
The banks and financial institutions generally respond to these inquiries by freezing the decedent’s accounts. This helps to limit their liability. Rather than getting involved in determining whether you (or someone else) should be given access to the account, the bank or financial institution will ask for letters testamentary.
It is not as common, but there are also times when the bank learns of the decedent’s death and they actively reach out to ask for letters testamentary. This is usually limited to banks in smaller towns or those who have a personal relationship with their clients, such as high net worth and celebrity clients.
You have to do a probate to get letters testamentary. Not all estates require a probate, however. As such, not all estates need a letter testamentary.
This is true for small estates that can be settled using a small estate affidavit, for example. It can also be true for estates that just have real estate that can be handled by an affidavit of heirship or community property that passes to the surviving spouse.
These alternatives to probate are often cheaper and faster than a full probate. However, if the bank requires letters testamentary and you cannot convince the bank otherwise, you may have no choice but to do the probate. This means an added expense if there is no other need for a probate other than to access the bank account–i.e., no unpaid debts, no litigation, and no other assets. This is particularly true if the amount in the bank account is not much more than the cost of doing the probate.
Luckily, many banks and financial institutions will accept a small estate affidavit. If there is a will, a muniment of title may also provide a solution. It is up to you or your probate attorney to help convince the bank to accept one of these options if they initially say no to the request. This is a situation where persistence can help.
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Disclaimer: The content of this website is for informational purposes only and should not be construed as legal advice and should not be acted upon without consulting a qualified probate attorney.
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