Probate in Tennessee is a court supervised legal proceeding that may be required when someone dies owning property. Probate will be required if a person had a will. Probate of a will is required even if the deceased owed no property that requires court supervision. It is a criminal offense in Tennessee not to probate a will in your possession. However, Tennessee courts allow a will to be probated without court administered supervision which fulfills the requirements of the law. Probate may be required even if a person does not have a will if they have property that requires court supervision to pass to heirs.
If a will or a estate is probated, someone is appointed with a legal authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the deceased’s heirs. If the person is named in a will, this individual is called the executor and the will determines who will serve as executor. If there was no will, then the person appointed to administrator the estate is called the administrator and is appointed by the court. It is recommended that everyone should have a will so that they may determine who is responsible for administrating the estate rather than leaving that decision to a third party who they do not know.
Probate in Tennessee commonly takes six months to a year, depending on the amount and complexity of the assets owned by the deceased. Certain assets such as a business can make probate a more complicated matter. It is recommended that everyone talk to an attorney before probating a will or opening an estate. If there are large assets or if someone decides to challenge the will, then the probate process can take longer than a year.
The Probate Process
Generally, the assets of the deceased go through probate. The legal representative (the executor or administrator) is required to marshal the assets (collect the assets). This consists of closing bank accounts and selling off personal property that is not wanted by the heirs. Real estate generally passes outside of the will directly to the beneficiaries named in the will, or if there is no will, to the deceased’s heirs at law. However, real property is subject to being brought back in to the probate estate if the personal property assets are not sufficient to pay the debts of the estate. The personal representative is required to pay all of the debts of the deceased, such as funeral expenses, individual loans, mortgages on real property (unless the lender agrees to allow the heirs to assume the loan), court costs and attorney’s fees.
There are some assets of the deceased that do not pass through the probate estate. Some of the more common assets are property held in joint tenancy. Property held by a surviving spouse passes directly to the surviving spouse outside of the will. Bank accounts which designate a payable on death beneficiary also pass outside of probate and pass directly to the beneficiary upon the death of the deceased. Life insurance proceeds pass to the beneficiary named in the life insurance policy and do not go through the probate estate, unless estate is listed as the beneficiary. And finally, in addition to other assets not listed here, retirement accounts generally pass to the named beneficiary rather than the estate. This is true unless the beneficiary of the retirement account is the estate.
Tennessee has a small estate process for probate, available to estates that have assets less than $25,000, not counting real estate. Rather than going through the full probate process, the executor named in the will or an heir can file a small estate affidavit with the court. This allows the individual to transfer estate assets to the beneficiaries without going through the full probate process.
If the estate is more than $25,000 or if there are complex assets, then the personal representative will need to proceed with the regular probate process. The process begins with the filing of the petition to probate the will and the filing of the original will in the appropriate court. If there is no will, then an individual may file a petition to be appointed administrator of the estate. Under the law, the spouse is the person most appropriate to petition to administer the estate, followed by the deceased’s grown children, parents, brothers and sisters, and so on. Once the appropriate petition is filed with the court, a hearing will be conducted to probate the will. All potential heirs who could inherit the deceased’s estate, whether there is a will or not, must be notified of this hearing.
If there is a will, the will must be proven in court. To be valid, the will must be signed in front of two witnesses and their signatures must be notarized. The will must contain a sworn affidavit to prove the will. If there is no affidavit attached to the will, then the petitioner must obtain appropriate affidavits from the two witnesses and file them in court or bring the two witnesses live to the hearing. The exception to this is the individual prepared a “holographic will.”
After a hearing to probate the will or administer the estate, the court will enter an order ordering the probate and appointing the personal representative.
The personal representative must notify all creditors of the estate. In addition, the court will have the death of the deceased published in a local newspaper to give notice to creditors. However, this notice does not relieve the personal representative of notifying all creditors they know about. Creditors generally have four months from the date they are notified to file a sworn claim in court. If their claims are not filed by that time, the claim is barred. If the claimant was not notified, then the claimant will have twelve months from the date of death to make a claim. If a sworn claim is filed with the court, the personal representative must either accept the claim or file an objection to the claim. If an objection to the claim is filed, then the court will conduct a hearing to determine if the claim is valid. In addition, the personal representative must file a notice with TennCare. If the deceased has received no TennCare benefits, then TennCare will forward a release to the personal representative which must be filed with the court.
The personal representative must also file an inheritance tax return with the State of Tennessee and may be required to file a federal estate tax return. There is a large exemption to the federal estate tax return ($5.43 million in 2015). If the estate is less than that amount, no federal tax return is required. However, a state tax return is required to be filed whether any tax is due or not. The estate will receive a release from the Tennessee Department of Revenue once the return is reviewed and any tax owed is paid. The estate inheritance tax release should be filed with the court as well.
Generally, shortly after the will is probated, the personal representative must prepare an inventory of assets of the deceased and file it with the court. This requirement may be waived by the will or may be waived by all the beneficiaries at the time the petition to probate a will or administer an estate is filed. Once the personal representative has completely marshaled all the assets, paid all the debts of the estate, including any taxes owed, and distributed any remaining assets to the heirs, the estate may be closed.
Relieve the Stress and Anxiety of Handlling Your Loved One’s Estate
Hiring a competent probate attorney to help you with this process can usually relieve much of the stress and anxiety which accompanies the loss of a loved one and in having to handle the loved one’s estate. The administration of an estate, including obtaining TennCare releases and filing tax returns, can be a long and cumbersome task. An experienced lawyer can streamline the process. If we may be of any assistance to you in these matters, please give us a call.
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201 4th Avenue. North, Suite 1700, Nashville, Tennessee 37219 /615.255.7500