Lebanon Probate Attorneys
What Is Considered Probate in Tennessee?
Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone (usually the surviving spouse or other close family member) legal authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the inheritors. In our experience, probate commonly takes 8-14 months to complete, though it may take longer if there is a court fight over the will or unusual assets or debts that complicate matters.
Not all assets need to go through probate; only assets that the deceased person owned in their own name must go through probate (called the “probate estate”). All other assets pass to new owners without oversight from the probate court.
Some common kinds of assets that are not part of the probate estate include:
- Property held in tenancy by the entirety – surviving spouse is automatically the sole owner.
- Payable-on-death (POD) bank accounts – passes to the POD beneficiary at the death of the account holder.
- Assets registered in transfer-on-death form (TOD) – assets registered in TOD form pass directly to the named beneficiary without probate.
- Life insurance proceeds – life insurance policies or annuities pass to the specified beneficiary.
- Retirement accounts – funds pass to the designated beneficiary.
- Living trust assets – held in the name of the trustee.
Tennessee does provide an alternative to regular probate if the estate is small. The simplified procedure is available if the total probate estate is worth less than $50,000, not including real estate. The simple procedure can be used to transfer all estate assets except real estate. An estate planning lawyer can provide more specific details on the simplified process if you qualify.
What Can a Will Do?
Note that a will must be proven valid in court before the terms can be executed. If the will was signed in front of two witnesses, one of them must either go to court or submit a sworn statement on the validity of the will. If the will is contested, both witnesses must state the validity of the will. In the case that the will wasn’t witnessed but was signed and entirely in the handwriting of the person who made it, it’s called a "holographic will." To prove its validity, two witnesses must testify to the authenticity of the handwriting.
If the deceased person left a will, probate begins when the person named as executor in the will deposits the original, signed will in the county clerk’s probate office in the county where the deceased person lived. The court will issue this person “letters testamentary,” which give the person authority to take charge of estate assets. If there is no will, a family member, usually the surviving spouse or grown child, asks the court to be appointed as administrator, and the court issues “letters of administration.”
The executor or administrator (the personal representative of the estate) has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate, puts the money from the deceased person’s accounts in it, and uses the funds to pay estate expenses. Be aware that a taxpayer identification number must be obtained from the IRS before an account can be opened.
The personal representative has the responsibility of notifying creditors of whom they are aware. The court clerk also publishes notice of the death in a local newspaper, which will give creditors a chance to make claims. Depending on when the creditors receive actual notice of the probate proceedings, they may have 4-12 months to make a formal claim.
Note that within 60 days after being appointed, the personal representative must:
- turn in an inventory of the assets of the deceased person that must go through probate, unless the will states that an inventory does not need to be filed or all beneficiaries agree that it is not required;
- notify everyone who stands to inherit under the terms of the will or state law;
- file a Request for Release with TennCare, the state Medicaid agency, to confirm that the agency won’t seek reimbursement from the estate for nursing home or home care received by the deceased person.
The personal representative must also file final state and federal income tax returns for the deceased person, which are generally due by April 15 of the year following the year of death. Note that a federal estate tax return will be required only if the deceased person’s taxable estate is very large – more than $11.58 million as of 2020. A majority of estates will not owe federal estate tax. This is subject to changing legislation, please check with an experienced estate planning attorney annually to see if your estate would be at risk of estate taxes.
When debts and taxes are paid, the personal representative can pay what’s left of the probate estate to the people entitled to inherit it. Keep in mind that if the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state (called an ancillary probate).
Seek an Experienced and Dedicated Probate Attorney
The probate process can be complex to navigate alone, especially when you might be dealing with many other emotional obstacles in the event of the death of a loved one. Our team at Vasek & Robbins have the empathy and professional experience to address any questions about probate you may have, whether or not the deceased left a will to work with.
If you have legal questions or concerns about the probate process, do not hesitate to reach out to our legal team at Vasek & Robbins. Especially as you might be dealing with many other emotional obstacles during this time, it will be helpful to have an experienced professional handle the legal issues for you and guide you through the probate process.
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