Probate / Estate Administration
Probate, also referred to as estate administration, is the formal, court-managed process of administering your estate and distributing your property after your death according to the terms of your will. The basic job of administering the estate and accounting for assets must be done whether the estate is handled by an executor/ executrix in probate or whether probate is avoided because all assets were transferred to a living trust during lifetime. If the assets of the deceased were owned through a well-drafted and properly funded living trust, it is likely that court-managed administration is not necessary, though the successor trustee must administer the distribution of the deceased’s assets.
Frequently asked Questions about Probate and Estate Administration
What is a testator / testatrix?
A person who makes a valid will. A will is the document through which a deceased person disposes of his property.
A testator must be of sound mind when making a will. In part to ensure that a testator is of sound mind, Tennessee requires that the signing of a will be witnessed by multiple persons. A testator also should be making the will without duress and free of coercion from other persons. If the testator is not acting of his own free will, a court may later void all or part of her will.
A person who dies without having made a will is said to have died intestate. The assets of a person who dies intestate are distributed under the laws of intestate succession as set out in Tennessee code. Often, the intestate heirs are different people from those that the deceased wants to leave her assets. One common example is that most people believe that their surviving spouse will receive all of their assets. Instead, the spouse of an intestate heir receives the larger of a child’s share or 1/3rd share of the deceased spouse’s solely owned property.
What is an executor / executrix?
An executor/trix is the person appointed in a will to administer the estate of a person who has died. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must ensure that the person’s desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining contact information for all beneficiaries named in the will and for any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor’s claims, making sure estate taxes are calculated, estate forms are filed, tax payments made, and assisting the attorney for the estate.
What happens if someone objects to the will?
Referred to as a “will contest” one must have legal “standing” to raise objections to a will. A person who has “standing” to challenge a will is typically someone who is named on the face of the will (such as the beneficiary) or someone who is not the beneficiary, but who would inherit (or lose) under the will if the will were deemed invalid.
Grounds for a will contest include improper execution, lack of capacity, and undue influence. Objections may occur when distributions are changed from a previous will to a newer will, or when children receive disproportionate shares under the will compared to what they would receive under the intestacy rules. There also may be conflict regarding the appointment of the executor. In Tennessee, either party to a will contest case is entitled to a jury trial. A will contest is typically a contentious, protracted and costly court process.
Does probate administer all property of the deceased?
There are some types of assets that are “non-probate assets” and do not go through probate. These include:
- Properties that are titled as “joint tenants with right of survivorship” or “tenants by the entirety” pass to the surviving co-owners by operation of law when the first owner dies and do not go through probate.
- Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
- Life insurance proceeds and IRA proceeds if there is a valid beneficiary named on the account.
- Investment accounts that have a valid “transfer on death” (TOD) designation.
- Property owned by certain trusts, including living trusts. Legal title to such property passes to the successor trustees to be distributed to the beneficiaries without having to go through probate.
How long does probate take? What costs are involved?
The cost and duration of probate will vary depending on a number of factors including the value and complexity of the estate, the existence of a will, and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add greater costs and delays. Common expenses of an estate include attorneys’ fees, accounting fees, court fees, appraisal costs, surety bonds and executors’ fees. Most estates are settled though probate in about 9 to 18 months, when there is no litigation.
For more detailed information about Probate in Tennessee: The Legal Handbook for Tennessee Seniors, 2014 Edition