how to open probate in tennessee
Everything you need to know about opening a probate case in Tennessee and what to expect.
what is probate court?
Probate court is a specialized court that deals with the legal process of administering the estate of a deceased person.
It is responsible for overseeing the distribution of assets and payment of debts to creditors. When a person dies, their estate may be subject to probate, which is the legal process of validating their will, if one exists, and ensuring that their assets are transferred to their beneficiaries according to their wishes.
The probate court is responsible for resolving any disputes that may arise during this process, such as challenges to the validity of the will or claims from creditors. The court also appoints an executor or administrator to manage the estate and carry out the necessary tasks, such as paying off debts, collecting and managing assets, and distributing the remaining assets to the beneficiaries. Probate court plays a crucial role in ensuring that the deceased person's estate is handled correctly and that their final wishes are honored.
Each county in Tennessee has its own probate court. Some are separate, and some are divisions of other courts. For instance, in Knox County, the judges of the Chancery Courts (Chancellors) handle probate. So, you would file your petition in the Chancery Court here.
It is relatively straightforward to find probate courts - just use Google!
does tennessee law require probate?
Under Tennessee law, the probate process is typically required for the administration and distribution of an estate.
When a person passes away, their estate in Tennessee (which includes all their assets and debts) must go through probate to ensure proper settlement. Probate is a legal process that involves:
validating the deceased individual's will;
paying off their debts; and,
distributing the remaining assets to the rightful heirs.
However, it is important to note that not all assets are subject to probate. Certain assets, such as jointly owned property, life insurance with designated beneficiaries, and assets held in a living trust, can bypass the probate process.
Think of your estate passing through a series of filters. At the very top, you have a filter that catches property with multiple owners and property that with named beneficiaries. Those assets either pass to the remaining owners, or under the terms of a contract. Whatever passes through the first filter has to go through the next one, which catches any assets that are held in a trust. Those assets are distributed however the trust dictates. Finally, whatever has made it through the other two filters hits the “Will” filter. Anything left gets passed under the terms of the will (or state law if the deceased person doesn’t have a will).
Therefore, individuals may choose to engage in estate planning to strategically organize their assets and minimize the need for probate. By taking proactive steps, such as creating a will, establishing trusts, or designating beneficiaries, one can effectively avoid lengthy and costly probate proceedings in Tennessee.
do all estates have to go through probate in tennessee?
In Tennessee, not all estates have to go through probate.
As we mentioned above, estates generally need to be probated in Tennessee. However, if the estate meets certain requirements, it may not need to go through the full probate process in Tennessee.
Small estates generally involve assets such as bank accounts, personal property, and vehicles - things most Americans accumulate over a lifetime. However, if an estate includes real property, it will not qualify. When a decedent's assets do not exceed a certain value, their estate may qualify for the streamlined procedure.
As of 2023, the threshold for a small estate in Tennessee is $50,000. Under this limit, the estate can avoid a full probate proceeding, which can be time-consuming and costly. Instead, the executor can file a small estate affidavit, after which the assets would be distributed under the terms of the will. This simplified process allows for a quicker resolution, saving beneficiaries both time and money. However, it is crucial to consult with an experienced probate attorney to understand the specific requirements and procedures involved to ensure a smooth administration of the estate.
Obviously the reverse is true - if you are dealing with an estate that is worth more than $50,000, or that includes real property (e.g. a house, a piece of land, etc.), you will have to file a probate petition.
what assets are exempt from probate in tennessee?
Not all assets need to pass through probate.
In Tennessee, certain assets are exempt from the probate process, meaning they bypass the estate and go directly to the designated beneficiary.
Life insurance policies, for example, are not subject to probate as long as there is a named beneficiary. The reason why insurance policies with named beneficiaries can skip the probate process is because they are contractual agreements between the insurer and the policy holder. Pursuant to the terms of the contract, the insurer will pay out the benefits of a life insurance policy to whoever is named. While this is most often the case, keep in mind that if someone names their estate as the beneficiary, the proceeds will go through probate.
Similarly, retirement accounts such as 401(k)s and IRAs are exempt from probate when there is a designated beneficiary. To avoid probate, individuals can also create a living trust, which allows them to transfer assets into the trust and name beneficiaries of the trust. Assets held in a living trust are not subject to probate, as the trust is a separate entity that holds the assets in place of the grantor (the person who created the trust).
Additionally, property owned under tenancy by the entirety, a form of joint ownership available to married couples, is also exempt from probate. Once one of the owners dies, the other owner of the property automatically retains full ownership of the property, and so it never becomes part of the estate.
Finally, bank accounts can potentially avoid probate if there is a payable-on-death beneficiary listed. It's important to note that assets subject to probate are those owned solely by the deceased individual and do not have a designated beneficiary or are not held in a trust. Otherwise, you risk potentially distributing an asset that actually belongs to someone else.
who becomes the executor?
The executor (or more commonly “personal representative”) is the person responsible for administering an individual’s estate after their death.
Typically, the deceased will name an executor in their will, who will then have the authority to handle the deceased’s assets, pay off any debts, and distribute the remaining assets to the beneficiaries.
The chosen executor can be a family member, friend, or even a professional such as an attorney or a bank. Often, the deceased will choose someone they trust and who has knowledge of their financial affairs to serve as the executor; however, if no executor is specified in the will or if the named executor is unable or unwilling to fulfill the role, the court will appoint an executor. This usually happens in cases where there is no will or the named executor is deceased or unable to act.
The court-appointed executor is typically a close relative, such as a spouse or adult child, but can also be a lawyer or a bank if no suitable relatives are available. Ultimately, the executor plays a crucial role in ensuring that the deceased’s estate is distributed according to their wishes and in accordance with the law.
Of course, if you are named as an executor, you may decline to serve by filing a sworn statement with the Court. Another executor will be selected in your place.
how do you open probate?
Probate is opened by filing a petition in the Probate Court.
Filing a probate petition in Tennessee involves several crucial steps. First, the petitioner, typically the executor named in the deceased person's will, must gather important documents such as the original will, death certificate, and an inventory of the decedent's assets.
Next, they need to complete and file the necessary probate forms with the appropriate probate court. These forms typically include a petition for probate, letters testamentary, and a notice to creditors. The probate filing fee must be paid at this stage.
Once filed, the court will schedule a hearing, during which interested parties, such as beneficiaries or creditors, may contest the probate process, or prove the will if necessary. The petitioner must then provide notice to all interested parties about the hearing. At the hearing, the court will review the petition and determine the validity of the will. If everything is in order, the court will issue letters testamentary to the executor, granting them the legal authority to administer the estate. However, the Court may also skip the hearing and issue the letters testamentary right away, especially where the will is properly executed with witness affidavits. (You can save your family a lot of headache by ensuring your sill is done correctly, so click below to schedule a consult)
From there, the executor can begin the process of inventorying assets, paying debts and taxes, and distributing the estate according to the will. It is worth noting that the probate process can be complex, and legal guidance from a qualified probate attorney can be immensely helpful to ensure a smooth and efficient administration of the estate (see below).
where is the probate petition opened?
In Tennessee, a probate petition must be filed in the county where the deceased person resided at the time of their death.
This county is commonly referred to as the "domiciliary county." It is essential to determine the correct county since each county in Tennessee has its own probate court. Filing the petition in the wrong county may result in delays and complications, as the the proper jurisdiction gets sorted out by the court and the parties.
Once filed, the probate petition initiates the process of administering the deceased person's estate, including identifying and collecting assets, paying debts, and distributing assets to beneficiaries or heirs. It is crucial to consult with an experienced probate attorney to ensure compliance with Tennessee's specific probate laws and procedures, as the courts require a variety of documents and pleadings to be filed.
is an attorney required to open an estate?
You are not required to hire an attorney to file a petition for probate, but it’s usually a good idea.
While it may be tempting to handle the probate process without professional assistance, hiring an experienced attorney in Tennessee can significantly benefit the executor and beneficiaries. Here are several reasons why it is a good idea to hire an attorney to handle probate in Tennessee:
Expertise and Legal Knowledge: The probate process involves numerous legal procedures and requirements that can be difficult to navigate without expertise in Tennessee probate law. An experienced probate attorney understands the intricacies of the legal system, ensuring all necessary documents are filed correctly and deadlines are met. Their knowledge and guidance will help steer executors through the complexities of the process smoothly, minimizing the potential for errors and delays.
Mitigate Disagreements and Disputes: Unfortunately, disagreements and disputes can arise during the probate process, especially when emotions are running high. Hiring an attorney early on can help prevent conflicts from escalating and provide effective strategies to mediate disputes. With their impartial perspective and negotiation skills, an attorney can help protect the interests of the estate and resolve any conflicts that may arise among heirs or beneficiaries.
Efficient Administration and Timely Distribution: Executing the probate process efficiently is crucial, as it allows for the timely distribution of assets to beneficiaries. An attorney can expedite the probate process by managing paperwork, coordinating with the court, and ensuring all necessary steps are taken promptly. Their experience in handling probate matters can help avoid unnecessary delays, facilitating an efficient administration of the estate and a quicker resolution for beneficiaries.
Peace of Mind and Emotional Support: Losing a loved one is already emotionally challenging, and attempting to navigate the probate process alone can compound the stress. Hiring an attorney provides peace of mind by offloading the legal responsibilities onto a professional. This allows executors and beneficiaries to focus on grieving and healing, knowing that an experienced advocate is handling the legal matters on their behalf. Attorneys not only provide legal guidance but also offer emotional support during this difficult time, alleviating some of the burdens associated with the probate process.
we’re here to help.
Hiring an attorney to handle probate in Tennessee is a prudent decision that can spare executors and beneficiaries from unnecessary stress, costly mistakes, and prolonged delays.
With their expertise, legal knowledge, and ability to navigate the complexities of the probate process, an attorney can ensure a smoother administration of the estate and protect the interests of all parties involved. So, when faced with the daunting task of probate, choosing the assistance of a skilled attorney is a wise investment that can save time, money, and emotional energy while safeguarding the legacy of your loved one.
