What is Probate?
Probate is the process of admitting a Last Will and Testament to the probate court to distribute a deceased person’s assets and estate. When a person passes with a Last Will and Testament, that person will designate an administrator or executor to deal with the distribution of assets. Probating a Will allows the executor to be granted authorization to tend to the details of administering a deceased person’s estate. These duties include settling debts, withdrawing stocks and bonds, closing accounts, selling property, and distributing assets to beneficiaries. At Rochford Law & Real Estate Title, PLLC, our experienced probate attorneys can guide you through the probate process. Give us a call today to discuss your probate case.
How Do I Know When Probate is Necessary?
A probate matter is typically pursued if the deceased person’s estate has assets that the beneficiaries of the estate cannot access, such as bank accounts, retirement accounts, or other financial accounts. Probate is also pursued if the deceased individual has a large or complex estate, and the executor would desire to open a formal probate method to distribute the assets accordingly and verify that any creditors to the estate have been identified and paid.
What is A Testate and Intestate Death?
Individuals who die with a Will are said to die “testate.” A Last Will and Testament will contain a provision appointing an executor of the estate and outlined what assets are to be distributed to certain individuals upon death. In Tennessee, a Last Will and Testament must be notarized with two witness signatures.
Individuals who die without a Will are said to die “intestate.” When this occurs, Tennessee law dictates the flow of estate and assets to surviving family members. When someone dies intestate, their property immediately flows to their heirs at law.
For assistance with an intestate death, give our Nashville Probate Attorney a call.
How Do I Begin the Probate Process?
The probate process is initiated in the probate court of the county where the deceased individual had their usual place of residence at the time of their death. To initiate the probate process, a petition will need to be filed with the county probate court. If the deceased individual died with a Will, the probate court will require the original Will to be filed with the Clerk’s office. A hearing will be held on the petition to probate the Will. Following the hearing, the Judge will order the estate to be opened and Letters Testamentary issued to the appointed Executor. The estate will then enter a four-month creditor period. During this period, the estate cannot be closed, and the assets cannot be distributed. Creditors will have four months to issue a claim against the estate. At the end of the creditor period, any claims will be paid to creditors, the assets of the estate will be distributed, and the estate will then be closed.
Tennessee Probate and Estate Administration FAQs
The length of the probate process varies from case to case. Once an initial hearing date is set, the parties to the probate case will appear in court, at which time the judge will appoint an executor or administrator and open the estate for probate. Once the estate is opened there is a four-month creditor period. During this time, the estate must remain open and all assets in the estate are withheld from disbursement to the beneficiaries in order to allow any creditors to make a claim against the estate. Upon the expiration of the four-month creditor period, the executor can typically disburse the estate to beneficiaries and close the estate. Depending on the availability of a court date, the existence of none or many creditors, and the complexity of handling the assets of the estate, a probate case can take a minimum of five months to over a year or more to settle.
Determining whether or not to file a probate case is often dependent on if assets of the deceased individual are available in the absence of a court order appointing an executor. Some assets, such as real property, can pass outside of probate. However, in certain instances, such as when real property is willed to an individual who is not a direct family member (spouse or child) or to the exclusion of other heirs at law, the probate process is necessary to transfer title to real property. Further, assets such as bank accounts, retirement accounts, and CDs can typically only be accessed if the bank or financial institution has evidence of a court appointed executor, demonstrating someone has the authority to access a deceased person’s account.
When a person dies without a will, they are said to die “intestate.” When a person dies intestate, TN law takes over and identifies those who are considered the heirs at law. In TN, upon a person’s intestate death, assets of the decedent are immediately vested in their heirs as defined by TN Code Ann. 31-2-104. Even if a person dies intestate, the decedent’s estate can still be probated so that the heirs at law can access assets of the estate.
An Affidavit of Heirship is a document filed with the Register of Deed’s Office to set forth facts concerning heirs that are entitled to a deceased person’s property. Affidavits of Heirship are typically used when a person has died intestate (without a Will) to identify who the heirs at law are to property owned by the deceased. If a person has died testate (with a Will) and the beneficiaries in the Will are the same as the intestate heirs, this document can be used to establish ownership to real property. Affidavits of Heirship are only used to establish ownership in real property. For assets such as financial accounts, probate would be necessary for the heirs to access funds.
The creditor period is a four-month period following the opening of an estate for probate. During these four months, the Executor cannot distribute assets of the estate or close the estate. At the start of the creditor period, notice is published in the local paper of the deceased person’s death. This allows any creditors to the estate to come forward and make a claim against the estate for unpaid debts of the deceased individual. Creditors only have the four-month period to step forward to make a claim until the creditor period is closed the estate can be disbursed and closed.
Probate is not required to sell real estate. A title search of the property and consultation with a title company will provide you a roadmap on what is required to sell the property without probate. Some requirements might include an escrow of the proceeds until six months post date of death, a copy of a death certificate and a TennCare release, deeds from all heirs at law of the deceased, an Affidavit of Heirship, and a search for any judgments and liens in the name of the deceased and the heirs prior to the sale. If a person died testate (with a Will) and the beneficiaries in the Will are not also the heirs at law of the deceased, then the beneficiaries will need to either go through the probate process to provide the validity of the Will or have all heirs at law deed them the property for the beneficiary to sell the property. In any event where there is a death in the chain of property title, the title company will have specific requirements as to what is required to transfer the property with clean title, but probate will not always be required. Contact Rochford Law & Real Estate Title today to learn more.
WHY WORK WITH ROCHFORD LAW?
- Professional and prompt
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WHY WORK WITH ROCHFORD LAW?
- Professional and prompt
- Experience
- Affordability