If you're on this page, you probably have a lot of questions about the Probate Process. What is Probate? What is Probate Court? What does probate mean? Do I need a Probate attorney? What is the Probate process? How to avoid probate?
If you are here to learn about Tennessee probate after the passing of a loved one, we first want to say that we are deeply sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
Probate in Tennessee is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in Tennessee may also be necessary to:
Prove the validity of the will
Appoint someone to manage the estate (the "administrator" if there is no will or the "executor" if there is one)
Inventory and appraise the estate property
Pay any debts or taxes (including estate taxes)
Distribute the property as direct by the will—or by the state law if there is no will
Many residents in Tennessee have heard that probate is bad news. It tends to be very expensive, it's time-consuming, and it's also a public process.
The easiest way to avoid the probate process is to plan. However, if you are now in a situation where you must go through probate court to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as painlessly as possible.
Although any beneficiary or creditor can initiate probate, usually, the person named in the will as the Executor starts the process. They do so by filing the original will with the Court and filing a Petition with the probate court. Typically, if there is no will, a close relative of the decedent who expects to inherit from the estate will file the Petition.
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. However, if that person is unable or unwilling to serve as Executor, or if there is no Will, any interested family member or person can petition the Court to be the administrator of the estate.
Being an Executor is a big responsibility. Tennessee's probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are specific deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
Tennessee law provides that the Executor gets paid a "reasonable fee" for the work that they put in. The Probate Court ultimately approves the fee.
In most cases, no. If your loved one's assets are owned in the name of a trust, the family should contact an experienced trust lawyer. We can complete the required paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a trust think they are taken care of. But time and again, family members of a recently passed loved one come into my office, only to find out they are facing the frustration, expense, and delay of probate, even though the person they loved had a trust.
Often the trust was prepared many years ago and was never updated. Frequently, the trust was not regularly reviewed to ensure that assets remained titled correctly. That is why it is crucial that you carefully choose your estate planning attorney and periodically review your plan and assets so that the planning you do now works as planned later.
It's why we do things so much differently than most other lawyers and law firms.
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass through title, such as real estate titled as "Joint Tenants with Right of Survivorship" or bank accounts titled as "Transfer On Death," are not subject to the probate process. Likewise, assets that pass using a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. However, in some situations, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
If there is no will or trust, the estate will be distributed according to Tennessee probate and intestate laws, which state that a person's estate will generally be distributed in the following order:
- Children (and your children have no children)
- Parents (if you have no children)
- Siblings (if you have no children or parents)
The length of time of probate takes will depend on several factors. However, it usually takes a minimum of 6 months and can take up to two years or even longer for complex cases.