If you’re not familiar with
probate, it is a court-supervised process that may be legally required after someone
passes away, especially when the person has assets. Once a probate case
is opened, someone, such as the decedent’s surviving spouse, a son
or daughter, or a close family member receives legal authority from the
probate court to pay the decedent’s debts and taxes, and transfer
assets to the beneficiaries of the estate.
In Tennessee, probate typically takes between six months and one year to
conclude, but it can take longer if there is
real estate to be sold, or if the case ends up in
litigation, which usually occurs between beneficiaries.
Wills Are Subject to Probate
When there is a will, by law it has to be submitted to probate. Once the
will is submitted to the probate court, the will is authenticated and then an
executor, otherwise known as a personal representative is appointed to administer
the estate, who is usually the person named in the will. So, whenever
a deceased person leaves behind a will, it has to be probated. The probate
process begins when the person named as the executor of the estate brings
the original will to the county clerk’s probate office, in the county
of residence for the decedent.
Not All Assets Are Probated
Certain assets are
not subject to probate proceedings because they do not pass through probate. Only the assets owned by the
decedent in their name alone are a part of the “probate estate.”
The following assets are NOT included in a probate estate:
- Jointly-owned property or property owned in joint tenancy, such as real
estate, and joint bank accounts. In these cases, when one of the owners
die, the property automatically passes to the survivors.
- Real estate owned with one’s spouse by tenancy by entirety. In this
case, when one spouse dies, the surviving spouse would automatically become
the sole owner.
- Payable-on-death bank accounts with POD beneficiaries.
- Assets that transfer upon death, such as securities registered in transfer
on death (TOD) form.
- Life insurance policies, because they pass directly to beneficiaries without probate.
Funds in retirement accounts, such as IRAs and 401(k)s because they pass
Assets held in
living trusts do not go through probate.
If you need legal assistance with estate planning or a probate issue, I
encourage you to
contact my firm directly. As a Nashville probate and estate planning attorney, I can help
answer your questions and guide you in the right direction.