Have you experienced the recent loss of a loved one? Are you the person responsible for the administration of your loved one’s estate? If that responsibility has fallen on your shoulders, you should be aware of the different issues that can be involved during the probate process. If you do not have proper legal representation, the probate process can very easily and quickly overwhelm you. There are many responsibilities that are involved in probate and, usually, multiple parties are involved along the way who surface through questions and concerns.
Probate is the legal process of proving the validity of a will or distributing property through intestate succession. The probate process begins with the unfortunate death of a loved one. Probate is a very complicated and complex area of law and the attorneys at Griffin & Davis, PLLC can help guide you through every step of the process. Our knowledgeable and compassionate team of lawyers can assist with a small estate valued under $50,000 or an estate valued at considerably more. We have successfully represented clients throughout the state of Tennessee with their probate matters and we can help you, too!
Do You Need a Lawyer to Probate an Estate in Tennessee?
The simple answer is yes. It is extremely important to hire a lawyer to help handle the probate of every estate in Tennessee. The probate process can be a very complex and complicated process that necessitates the detailed knowledge of court procedures and probate laws in Tennessee. There are numerous Tennessee statutes that have required deadlines that have to be complied with in for an estate to be properly probated.
In fact, in some parts of Nashville, Tennessee, all filings by fiduciaries must be filed by a licensed Tennessee lawyer, particularly in Davidson County. This notes the importance of legal representation in the probate process.
What Type of Assets Require Probate?
Not all assets will need to go through probate court, especially those that the deceased has notified in their will as not requiring a court process. Probate assets in an estate that will more than likely require going through the probate administration process include the following:
- A life insurance policy where the deceased listed the estate as a beneficiary;
- Home/land owned by the deceased;
- Any investments/stocks, IRA, 401k, or retirement plan that the estate is designated as the beneficiary for;
- Bank/credit card union accounts;
- Personal property (cars, TV, jewelry, furniture, clothing, etc.);
- Any asset that is titled in the deceased person’s name that has another person listed on the property title as “tenants in common;” and
- Any asset that is titled in the deceased person’s name that does not have joint ownership or does not have any designation of a beneficiary.
Probate Practice Areas
If you would like your assets and your loved ones to be protected when you are no longer around to do it, you will want to set up an estate plan. Estate planning is very important for many reasons. When a person makes a plan for their estate, it is usually to ensure that the transfer of their assets to the heirs of the estate occurs with the smallest tax burden possible. If proper estate planning is put in place, the federal and state estate taxes or inheritance tax can be reduced greatly. Contact the attorneys at Griffin & Davis, PLLC today to speak with a knowledgeable and trusted estate planning attorney to put a plan in place.
Regardless of whether a will is drafted by a reputable law firm or whether it was written on a scrap of paper, the intentions and interpretation of estate planning documents can be called into question. A person can dispute that the deceased was being influenced or persuaded when they wrote the will or claim that the writer of the will was not coherent enough to process and understand what they were doing when they were putting the will or trust together. The lawyers at Griffin & Davis, PLLC can assist you if there is a dispute with a decedent’s will. We can help you come to a fair resolution.
Probate can be a lengthy and expensive process. If possible, it is easier to handle the will outside of court. For many items the deceased had previously owned, it is not necessary to go through the probate process but there are circumstances where it becomes necessary.
There are six types of circumstances where one does not need to go to the probate court in order to be transferred property from the deceased:
- Deceased community property will automatically pass onto their descendant.
- With married couples who had joint custody of property, the property will go automatically to their living spouse.
- If the property is held in trust, probate is not necessary.
- Banks that hold the property and take it back following the death of the owner.
- Funds that are in retirement holdings do not go through probate if a beneficiary has been named for the account.
- Decedents who had previously filled out a transfer-on-death form, forms in Tennessee that individuals fill out to name beneficiaries on the time of their death, will automatically have their assets passed out to those they have included in said forms.
In order to go through the probate court process, there must be a person who goes through each item and property owned by the deceased to evaluate all of their possessions. That person is called an executor. The executor is also responsible for paying bills for the estate before it can be distributed to its new owners. The executor is most often a personal representative whom the deceased will have chosen and named in their will. This individual will have the power to distribute the deceased’s property as is stated in the will. If there is no will, the deceased’s closest relative or a surviving spouse will often be asked or will be chosen by the court to supervise the distribution of the deceased’s properties.
Sometimes, through the probate process, a will and the distribution of a deceased family member’s property can be contested. If you believe a will is invalid or was made in error, contact the attorneys at Griffin & Davis, PLLC to discuss your situation and learn about your legal options. Our knowledgeable and skilled attorneys have the answers to all of your questions regarding probate issues and can help guide you in the right direction.
Tennessee also provides an alternative to probate court if the total estate worth is less than $50,000. This way to transfer property saves people time, energy, and money that would have been otherwise spent going through a lengthy court process.
An executor will file a written request, a death certificate of the creator of the will, and a copy of the original will to a probate court, as well as a form which lists the deceased’s assets and debts. There will then be a 45 day waiting period to enact the simplified probate process before the probate court decides whether or not to accept the simplified process.
Probate Court Process
The lawyers at Griffin & Davis, PLLC can help you maneuver through the complex Tennessee probate process. We understand that the loss of a loved one is always difficult to deal with and having to handle the decedent’s estate often adds an additional emotional toll. The law in Tennessee states that a will must be filed with the probate court in the county where the deceased person lived. If there is no representative issued by the deceased in their will, the probate court will elect someone to handle the distribution of the estate and property or someone in the family of the deceased can ask the court to be appointed the executor and handle the probate court affairs.
In court, the deceased’s will must be proven to be valid. If the will was signed in front of two witnesses, at least one must come into court and swear an oath to the will’s validity. If the will is being contested, both witnesses must come into court and announce its validity.
The executor must notify any creditors that they know of about the deceased’s passing. This information can usually be located by looking through old tax records, opened mail/bills, and checkbooks. A court clerk will also post a notice of death in the local newspaper to further notify creditors that the executor may not be aware of. Creditors have between four months to one year to make a formal claim with the court and executor, although many creditors will submit claims informally with the executor and will be paid without a lengthy court process. If the estate does not have enough money to pay off the deceased person’s debts, the creditors will receive letters detailing the lack of funds and can file an objection to the probate court about distribution plans.
The executor of the will must notify everyone who stands to inherit through the will or by the state within 60 days. They must file with TennCare, Tennessee’s Medicare service, to ensure that the agency will not use nursing home/home-care reimbursement from the deceased’s estate and give an inventory of all assets that must go through probate. In cases where the will specifies inventory does not need to be taken down or all beneficiaries agree not to give inventory, then the executor will not need to write down all properties/assets.
I have to go through probate. When do I need to have it done?
There is no time limit to probate a will under Tennessee law, so it can be done at any time. However, once the probate process has begun, an executor of the will must notify beneficiaries of the will and creditors within 60 days.
Do I still have to pay taxes on the estate?
If you are the executor or personal representative of the deceased, you will have file final federal and income taxes for them. Federal estate tax return may be required only if the taxable estate is more than $11.4 million (as of 2019, in the state of Tennessee).
The will was written and signed with no witnesses present. Can it still be upheld in court?
If the will was not signed in front of two witnesses, it can still be considered an authentic will and be upheld if it was written in the deceased’s own handwriting. Two witnesses must come into court and give testimony that the handwriting matches the deceased’s. Only then can that will be used in court. This type of will is called a holographic will.
I’m afraid the executor/person in charge of distributing the will be trying to take more assets than what they are due. What can I do?
If you or the probate court has reason to believe that the executor of the will may be fraudulent, they may provide an executor bond. This executor bond is insurance that rules in favor of the estate and will possibly prevent abuse from the executor. However, executor bonds can also be pricey, especially if the court chooses not a provide a bond and one must pay out of pocket to enact one. For more information about executor bonds and ways to ensure a will is not being manipulated, you should hire a seasoned lawyer. Contact the law offices of Griffin & Davis, PLLC today. We can give more information on ways of protecting your rightful property.
What is a nuncupative will? Is it a valid will?
A nuncupative will, or oral/verbal will, is one that is enacted when the deceased faces imminent death, such as family member about to die from cancer who is too weak physically to create a written will.
A nuncupative will must be said verbally in front of multiple witnesses and does not supersede the deceased’s written will. If the deceased is in an addled state of mind or faces memory problems, a nuncupative will may also not be found valid by the eyes of a probate court. If a family member has left a verbal will, it is important to contact a seasoned probate attorney who can go over the law and let you know if the will is valid.
Let the attorneys at Griffin & Davis, PLLC help you with your probate issues! Call us today!