Posted by Martin Heller Potempa & Sheppard, PLLC on April 1, 2021
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Probate litigation occurs when a situation arises that requires involvement by the probate court–this may be questions about the estate, issues with a will, or concerns about the terms of a trust. The purpose of probate is to prevent fraud after someone’s death by freezing the estate until a judge determines that the will is valid, and all necessary parties have been notified of the deceased’s passing. Though not all estates must go through probate, when you are involved in probate litigation, you likely have concerns. Martin Heller Potempa & Sheppard, PLLC explains what you should expect from Tennessee probate.
The Tennessee Probate Process–When an Estate Does Not Require Probate
As a basic rule, when an estate falls to a certain threshold, it may be considered small enough to not need court intervention to be settled. For example, properties worth less than $25,000, (not counting real estate or property held jointly with right of survivorship) can be handled under the summary probate procedure for estates.
In addition to the size of the estate, the types of assets held will also determine what is or is not subject to probate. In general, if the asset is automatically transferred at the death of the owner, no probate is required.
Common assets that pass without probate include:
Joint Tenancy Assets/Right of Survivorship: If the property is held in joint tenancy, the surviving tenant becomes the owner of the entire asset.
Tenancy by the Entirety or Community Property With Right of Survivorship: Available to married couples, these assets function similarly to joint tenancy assets.
Beneficiary Designations: Within accounts such as retirement accounts and life insurance policies, there are named beneficiaries who are entitled to the assets in the account or the proceeds of the policy at the time of the account holders’ or policyholders’ death. This is similar to payable on death accounts where the account holder will fill out a form to designate who should receive the remaining account assets upon death.
When an Estate Does Require Probate
While there are times probate is not required, there are times when it is. In Tennessee, when an estate exceeds the small estate threshold, and there is not a will, probate will be required before the estate can be transferred to the decedent’s beneficiaries.
The general Tennessee probate procedure is as follows:
1. The will must be filed with the probate court in the county where the decedent lived.
2. A petition for probate must be filed with the probate court as well to request the appointment of an executor. If there is no will, the court will appoint a personal representative of the estate.
3. “Letters Testamentary” will be issued.
4. Publication of the probate must be published and creditors will have 4 months after the date of publication to make a claim against the estate.
5. An inventory of the estate’s assets must be filed within 60 days.
6. Once all of the creditors and taxes have been paid, a petition to close the probate must be filed with the court.
7. Distribution of the estate’s property to the beneficiaries will occur.
Probate litigation is complex and often worrisome for Tennessee families caught up in the middle of it all. Luckily, Martin Heller Potempa & Sheppard, PLLC can help.
We have helped numerous individuals throughout Tennessee, and we are ready to help you. Our sensitive legal team stays updated on the latest developments and will work meticulously to pursue your goals. To speak with one of our attorneys, contact us online or call (615) 800-7096.
If You Need Legal Assistance, Contact MHPS Law Firm Today