Letters Testamentary and Letters of Administration
A deceased individual is referred to as a “decedent” in the eyes of the law. In Missouri, the administration of a decedent’s estate takes place (1) in the county of the decedent’s domicile (basically, his or her home), (2) if the decedent did not have a domicile, then any county where he or she owned real estate, or (3) if neither (1) nor (2) applies, any county where the decedent left property. Once you have properly identified the correct county, then it is important to consult the local rules of court for relevant forms and information. Estate Administration procedures can vary slightly from county to county.
Now, say the decedent created a will and named you as personal representative. What does being a “personal representative” entail? Well, there isn’t enough time in the day to cover it all, but let’s talk about some of the qualifications of a personal representative. The named personal representative will be appointed as the personal representative by the court so long as he or she is not incompetent or unsuitable under 473.110, RSMo. To be appointed, the personal representative needs to usually apply for “letters testamentary” with the proper court, which in turn will authorize that person to act as personal representative and carry out the instructions contained in the decedent’s will. Once the Personal Representative has the returned “letters testamentary” from the court, he or she will have the proof to show to other individuals that he or she is authorized to handle any administration required under the will.
Letters of Administration, on the other hand, involves an intestate estate (i.e., a decedent who died without a will or trust). Within one year of the death of the decedent, an interested party (usually a family member) may apply for Letters of Administration so that he or she can act as personal representative. Where things start to differ greatly is that in many cases multiple people will apply for Letters of Administration. In such case, the Court will have to prioritize who legally has a better claim to serve as Personal Representative. Obviously, this can often result in fights and litigation.
In sum, letters testamentary are required of a Personal Representative appointed under a will, while letters of administration are required for someone applying to be a Personal Representative under an intestate estate. Because letters testamentary are much more straightforward (after all, it reflects the decedent’s wishes), it is advisable that you create a will appointed a personal representative. The probate process doesn’t need any more complications. In any event, it is probably a good idea to consult with an attorney who is familiar with the Missouri Probate statutes and the local court rules to ensure things go efficiently.