When an individual passes away, said person’s legal and financial affairs must be settled. In the State of Tennessee, the procedure for which these matters are settled is a legal process known as probate.
Probate administration is an undertaking which provides a legal method of ensuring someone’s final matters are resolved appropriately and within the bounds of the law and their intentions. Issues that could be subject to probate include:
- Final asset distribution
- Identification of suitable heirs-at-law
- Specific directives regarding how their final affairs will be settled
- How their debts will be remitted
As every person’s situation is different and might have varying circumstances, the preceding list is merely the most common matters probate administration typically resolves.
The Probate Process
The probate process is initiated in accordance with whether or not the decedent possessed a will. Should said individual have a Last Will and Testament, that legal instrument will often serve as the guideline regarding how their affairs are to be resolved.
A will must be filed with a probate court located within the municipality where the deceased individual resided and reviewed by officials representing said judicial body. Should those authorities opine that the will was authentic and written in accordance with the law, the process for resolving the decedent’s affairs can commence.
Typically, the deceased person’s will contains the name of who said individual wished to serve as executor. The executor is the person given the legal responsibility to perform the duties as instructed in the document. The executor’s functions include but are not necessarily limited to:
- Locating and notifying the deceased’s rightful heirs-at-law
- Executing an accounting of the decedent’s estate and assets
- Learning of the deceased’s debts
- Filing the decedent’s final income tax return
- Distributing assets as instructed by the will
If a person died without having authored a will or with a will which is not deemed legally valid, that individual died Intestate (legal term), the probate court in question will likely nominate a close relative or relation to serve as the estate administrator. There is a statute that provides for the priority of who should be appointed the administrator. Said individual serves the same function and is expected to perform the same duties as the executor. If no relations exist, the court may appoint a third party to resolve the decedent’s affairs as mandated by state law.
Is Probate Always Necessary?
The probate process can be tedious and time-consuming, especially if the deceased person died intestate or their will is challenged on legal grounds. In many instances, probate lasts for at least a four month period in which creditors have an opportunity to make a claim against the estate, but could drag on much longer, possibly even years when complications arise.
That said, there are certain methods individuals can employ to ensure that certain assets are not required to pass through probate. Such efforts include:
1) Establishing a Living Trust
Living trusts enable a person to place all of their worldly assets into a trust. At the time of their passing, a decedent-appointed Trustee distributes said assets in accordance with the late person’s wishes. It is always important to have a will that, in addition, states that any assets that failed to be put in the name of the trust will be bequeathed to the trust.
2) Naming Payable on Death Beneficiaries
Many bank accounts and other financial instruments will allow account holders to designate one or several beneficiaries that will be remitted the existing funds upon their passing. These designations are often referred to as Payable on Death or Transferrable on Death monikers.
3) Establish Joint Tenancy
In Tennessee, real property (homes and land) are not necessarily included in the probate administration. Real property is either owned in a manner where there are rights of survivorship or the ownership of the real property is vested in the heirs-at-law upon death of the owner. In some circumstances, such as, the real property needs to be sold to pay debts, the real property will need to be brought into the probate administration process and the sale monitored by the court. In other circumstances, where the heirs desire to sell the real property, it may be advisable to file probate administration and make notice to creditors in order for a title insurance company to insure the sale.
Every decedent’s situation is individual and different. It is always advisable to contact a probate attorney in order to review your loved one’s specific situation. Heirs can be held individually liable to creditors if the process is not legally administered.