The Probate Process
Probate is the legal process of opening an estate under the control of the probate court. If the decedent left a valid last will and testament, the probate process allows the court to legally recognize such a will, appoint an individual(s) and/or entity(ies) as the executor(s) responsible for the administration of the estate, and distribute the decedent’s assets to the intended beneficiaries (this is known as “testate administration”). If the decedent did not leave a valid last will and testament, then, during probate, the court will appoint an individual(s) and/or entity(ies) as personal representative of the estate responsible for the administration of the estate and distribute the decedent’s assets to his or her heirs-at-law (this is known as “intestate administration”). Under Tennessee law, an intestate decedent’s probate assets pass to his or her heirs-at-law. Depending upon your status at death (e.g. married, single, children, etc.), your heirs-at-law will be your family, for example your spouse, your children, your parents, or your siblings.
All of your assets do not pass through the probate process. Probate assets are the assets that you own at your death that are subject to probate administration in order to effectuate a transfer of ownership to a beneficiary. Assuming that you die testate (with a will), your will governs how a probate asset will be distributed. For example, if you are the sole owner of a piece of jewelry, then that jewelry will be subject to probate upon your death and will pass to the beneficiary named in your will. Non-probate assets bypass probate and are distributed directly to the beneficiary. An example of a non-probate asset is a life insurance policy where your spouse is named as the primary beneficiary; upon your death, the proceeds of the life insurance policy are immediately payable to your spouse and he/she does not need to involve the court to receive this benefit.
Key Steps in the Probate Process
The following are some (but not all) of the key steps in the probate process:
- The Petition. File a petition with the court requesting that a decedent’s estate be opened and that legal notice be given to any heirs and beneficiaries. You ask in the petition that a decedent’s will be recognized by the court and that the named executor be appointed by the court. If the decedent did not leave a will, then the petition will ask the court to open an intestate estate and appoint a personal representative. There will be a court hearing to consider the petition. When the court appoints the executor/personal representative, it also issues Letters Testamentary (for testate estates) or Letters of Administration (for intestate estates); these Letters are official documents which show that the executor/personal representative has the authority to act on behalf of the estate.
- The Creditor Notice. One of an executor/personal representative’s duties is to gather the decedent’s assets and settle the decedent’s debts. During the probate process, the executor/personal representative may have to make an inventory of the decedent’s probate property. The executor/personal representative will also have to notify creditors of the decedent’s death and the opening of the estate. Upon receiving this “notice to creditors,” the creditors have to file a claim in probate court within a certain amount of time in order to collect on any debts left by the decedent. The executor/personal representative will then determine if this is a valid claim and if there are sufficient assets to satisfy all the debts, and will pay all legitimate debts and bills out of the estate.
- Final Distribution of Estate Assets and Property. Once the creditor period has expired, the executor/personal representative is tasked with paying all legitimate debts and bills of the estate. This will include any estate administration costs, funeral expenses, and taxes and debts. At this point, the remaining balance of the estate will be distributed to your beneficiaries (known as the “residual beneficiaries”). Please note that a specific bequest, which is a gift of a specific item of property that can be easily identified and distinguished from all other property in the estate, will generally be distributed to the beneficiary named in the will prior to final distribution. As assets are distributed, it is always a good idea to have the recipient sign and date a receipt of such property. Once the distribution of the estate is completed, and all taxes and other liabilities have been met, the estate can be closed and probate will come to an end.
What Should I do Now?
The probate process can be complicated, paperwork-intensive, and time-consuming, especially when you are still dealing with a loved one’s death. If you are the executor or personal representative of a loved one’s estate, Cole Law Group would be pleased to help you navigate probate court proceedings and the estate administration process.