“Letters Testamentary” v. “Letters of Special Administration”

I had an interesting case lately. The decedent had money in another jurisdiction that was not in their trust. However, it’s in a different jurisdiction, with different laws, and it sounds like the bank account has some funky titling not normal in the United States. It simply wasn’t clear what the banker wanted to clear title though. I should add this is a big money situation and time is of the essence. Initially I was told they wanted “letters” but there are many varieties of letters so which one did they want?

Getting “letters” means going to probate court. However, it does not mean that you are definitely doing a full probate. There are options and each one takes a different amount of time and costs are different as well. The types of letters are:

1) Letters Testamentary – this is where the decedent had a will and the named executor has been appointed by the Court to serve;

2) Letters of Administration – is basically identical to letters testamentary but means either there is no will or the person named executor is not serving (i.e. petition for letters with will annexed).

3) Letters of Special Administration – this is totally different than the above. It’s typically a short term (temporary) solution and can be attained on an emergency (ex parte) basis in some cases.

So in this case what does the banker really want? As I explained to my client (the named executor) there are options. Here’s a modified version (to keep attorney-client communications private) of what I told him:

“Jimmy: (no that’s not his real name)
My concern is I have a few different directions I could go.

Initially I was thinking to just file for letters of special administration. This is basically a temporary position. I would ask for the most powers the Court will grant but it’s unknown what exactly it will say. My thought is the bank in the other jurisdiction might be happy because it will be “letters” and it will be issued by a court.

However, the more I think about it I think I want to also file a standard probate. It’s a higher chance of success at our court date but we are at the mercy of the Court for when our initial Court date is. Interestingly the probate code says the court “must” give us a court date within 30 days of filing. You’ll laugh but most courts consider the word “must” as optional and we could get an initial court date between 1 and 3 months out. Once we do have our court date we will almost for sure get letters testamentary. This basically means the court has accepted the will so is a little more likely the bank will accept it. It’s the granddaddy of probate documents I would say. Once the bank accepts it we will close our probate as having no assets. Actually we’ll leave it open 4 months which allows creditors to file claims but I assume your parents do not have any creditors.

Seeking letters of special administration is more expensive as I have to spend time sitting at the courthouse in an attempt to get them issued on a rush basis. That could be as soon as next week though. However, it costs money between attorney time sitting at the courthouse and the court filing fees. If we are successful, and the bank accepts them, then we can just drop our full probate petition.

Please let me know if this makes sense to seek letters in two different ways or fill me in on any other info the bank provided.

If you want to chat on the phone I have time Tuesday and Wednesday.

-John”

So, as you can see there are options. It’s a gray area here…. There is not simply one answer that works. There are options. In this case where we don’t know exactly what the bank wants that’s the first step. Once we have the bank pinned down, in writing, then we can proceed.

To me this is a great example of why probate is much more complex than a do-it-yourself book might indicate. There is no book for situations like this one!

-John

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10.0John Bernard Palley
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