So the Bank says you need "Letters Testamentary"...

The following scene is commonplace: a grieving, surviving loved-one goes to the bank to collect funds from a decedent's bank accounts, only to be told by the banker that it's necessary to obtain Letters Testamentary (or Letters of Administration). If you've never gone through the process of administering the estate of a loved-one, you probably have no idea what these documents are, or how one goes about obtaining them.

Here are some quick answers:

Letters Testamentary:

Letters Testamentary are simply a (usually) one-page document issued by the Clerk of the Probate Court of the county in which the decedent resided, stating that the Probate Court has appointed the person bearing the Letters as the Personal Representative (or Executor) of the decedent's estate. These are issued when the decedent has passed leaving a validly executed Last Will and Testament (hence the term "Letters Testamentary.")

Letters of Administration:

Letters of Administration are very similar to Letters Testamentary, and perform the same function, but are issued by the Clerk when the decedent passes away without leaving a validly executed Last Will and Testament, and the Personal Representative is left to administer the estate not pursuant to the terms of a Will, but instead pursuant to Indiana's laws of intestacy.

How does one obtain Letters?

A prospective Personal Representative or Executor should quickly contact an experienced estate attorney to prepare the necessary pleadings to file with the appropriate Probate Court. The attorney will prepare a document called a "Petition" asking the Probate Court to appoint the client as a Personal Representative or Executor. Sometimes, depending on the county, both the client and the attorney will be required to appear before the Judge or Probate Commissioner. If the Petition is approved, the Court will then, enter an Order appointing the client as the Personal Representative of the estate. The Court's Order should also include instructions to the Clerk of the Court to issue the Letters Testamentary or Letters of Administration.

The main point to take away is that when it becomes clear that "Letters" are necessary, it is important to contact an estate attorney so that you can be adequately advised and represented before the Probate Court that must enter the Order to appoint a Personal Representative and issue the "Letters."

If you need representation in obtaining Letters Testamentary or Letters of Administration, or simply have questions regarding these or other estate administration or estate planning issues, please feel free to contact me at (317) 575-8222, or visit our website for more information.

How do I get a Power of Attorney?

In this entry I'll attempt to address some common questions regarding Power of Attorney documents, as there seems to be a vast sea of misinformation about them confronting the general public.

I often get calls with the question: "How do I get Power of Attorney for my mother/father?"

What has usually happened is that mother or father is either in failing health, or has started exhibiting signs of dementia or other loss of cognitive abilities, and son or daughter is attempting to manage the parent's financial affairs.

First, to answer the initial question, a Power of Attorney must be granted by mother or father to the person designated as the "attorney-in-fact," through a validly executed Power of Attorney document drafted by qualified counsel. You can find additional information about the different types of Power of Attorney documents and their benefits at our website, at www.halcombsingler.com. However, this answer raises follow-up questions of its own:

1. Does mother/father currently possess the necessary mental competency to execute the document?

2. Does mother/father truly understand the implications of granting Power of Attorney? When, and to whom, does he or she feel comfortable granting that authority?

Mental capacity:

It's important to note that when an attorney drafts and prepares a Power of Attorney document, it must be after careful consultation with the principal, and that the principal (usually mother or father) fully understands the authority he or she is granting, and that he or she possesses the capacity to execute the document(s). It is sometimes the case that mother or father's mental capacity has already deteriorated to the point that it's no longer possible to have them grant a power of attorney. If that's the case, then the only option may be to petition a probate court for formal guardianship over the parent. Whether a power of attorney or guardianship is the appropriate course of action should be determined through consultation with a qualified attorney.

Principal's desire to grant authority:

A Power of Attorney document generally conveys broad authority to the attorney-in-fact, and should not be granted lightly. Principal should have a thorough consultation with counsel regarding the authority granted, and when the documents should become effective. Powers of Attorney may become effective either (1) immediately upon execution, or (2) only after the Principal's treating physician confirms in writing that the Principal is no longer able to manage his/her affairs. The principal should discuss the pros and cons of each of these alternatives with the attorney before the documents are drafted, so that an informed decision is reached.

Whether your situation calls for a Power of Attorney document, or a formal guardianship proceeding, we can offer legal guidance and support. If you have questions about any of these issues please feel free to contact me at (317) 575-8222. For additional info, please check out our website at: www.halcombsingler.com