Almost every estate must go through probate; however, the probate process is commonly misunderstood. Whether you are currently involved in the estate planning process and looking to avoid probate as much as possible, or you were recently named as an executor and are looking for guidance, the Brentwood probate attorneys at Batson Nolan PLC are here to help. We have over a century of experience providing Brentwood families with sound, effective, and reasoned advice throughout the probate process. Contact us today.
What Is Probate?
Probate is the legal process that an estate must go through before any beneficiaries receive any estate assets. The Tennessee probate process is complex. However, at its core, it involves a few steps. First, a judge verifies a person’s death and validates their will. Next, the judge appoints an executor or personal representative to oversee the administration of the estate. The executor or personal representative has several duties. For example, they are responsible for accounting for and paying the deceased’s debts and paying any applicable taxes. They also must defend the estate against any lawsuits that may arise. Once this process is complete, the executor distributes the estate assets according to the deceased’s will.
Can You Avoid Probate?
Yes, it is possible to reduce the amount of probate assets in your estate. This is because not all assets go through the probate process. In general, individually owned assets go through probate. However, assets that are jointly owned by one or more owners do not. These assets typically automatically pass to the other living owners upon one owner’s death. For example, if you are the sole signer on a bank account, the money in that account must pass through probate. However, if you and your spouse are joint signers on an account, the account balance automatically transfers to your spouse upon your death. Other types of non-probate assets include:
- Property held in most trusts;
- Retirement accounts;
- Life insurance and brokerage accounts that list someone other than the deceased’s estate as the beneficiary;
- Bank and brokerage accounts that have Payable on Death (POD) or Transfer on Death (TOD) designations; and
- Real property that is held in joint tenancy or as tenants by the entirety.
These are just a few types of non-probate assets; there are many others. The experienced attorneys at Batson Nolan PLC can provide you with a complete list of probate-avoidance strategies.
Why Convert Probate Assets to Non-Probate Assets?
The primary reason to convert probate assets into non-probate assets is to save loved ones the time and expense of going through the probate process. Probate is often a lengthy process and can end up eating up a significant portion of an estate’s value. This is especially the case if one or more people contest the will or engage in other probate litigation. Additionally, converting probate assets to non-probate assets may result in other benefits, depending on the situation. For example, by creating and transferring assets into an irrevocable trust, trust assets do not have to go through probate. In addition, they are not counted for estate-tax purposes (although Tennessee does have an income tax, estates are still subject to the federal estate tax). An experienced lawyer can explain how converting probate assets into non-probate assets may save your loved ones time, money, and the stress of possible litigation.
The probate administration process is not something most people are familiar with. So if a loved one named you as the personal representative of their estate, it’s common to have questions. It is important you seek advice whenever questions arise because, as a personal representative, you have a fiduciary duty to the beneficiaries named in the will. Additionally, you are in the position of defending the estate from any litigation stemming from someone who challenges the validity of the will.
A Brentwood probate lawyer can help executors and personal representatives deal with the many complex and high-stakes situations that may arise during probate, such as:
- Can a personal representative give beneficiaries an advance on their inheritance before the completion of probate?
- When is a personal representative liable for the insolvency of an estate?
- Which creditors must a personal representative payback first?
- How can personal representatives effectively manage disappointed and litigious loved ones who were left out of a will?
- What should executors do if someone contests the will?
If you serve as an executor or personal representative, it is essential that you receive individualized guidance from an experienced Brentwood probate attorney.
What Is a Will Contest?
A will contest is essentially a challenge to the validity of a deceased person’s will. Typically, someone contests a will because they believe they were unfairly left out of the will, or they think that a prior version of the deceased person’s will should remain effective. Thus, will contests are often based on someone’s claim that the creator of the will either lacked the capacity to create the will or failed to execute it properly.
While many will contests are based on suspect motives, others are valid. For example, you may contest a deceased parent’s will if you believe that one of your siblings (or a step-parent) unduly influenced their decision to change their will shortly before their death.
Navigating a will contest as an executor or personal representative can be a very thorny issue, especially when the contesting party is a family member. Having the assistance of an experienced probate lawyer can provide you with the guidance you need to make sound decisions during even the most difficult times.
Frequently Asked Questions
When Is Probate Required and When Is Probate Unnecessary?
Tennessee provides an expedited alternative for small estates. This simplified procedure is available for those estates with a total value of no more than $50,000. Notably, you cannot transfer real estate through the simplified probate process.
While many estates exceed the $50,000 threshold, there are steps people can take during their life to reduce the value of their estate so that it qualifies for the simplified probate process. Individuals or families can implement trusts, restructure their assets, or transfer assets to others to decrease the total value of their estate. For example, the following assets are generally exempt from probate:
- Assets in retirement accounts, such as IRAs and 401Ks;
- Bank and brokerage accounts with Payable on Death (POD) or Transfer on Death (TOD) designations;
- Life insurance and brokerage accounts listing someone other than the deceased’s estate as the beneficiary;
- Property held in most types of trusts; and
- Real estate that’s held as joint tenants or tenants by the entirety.
These examples are just a few of the ways to avoid probate; there are many others. An experienced probate lawyer at Batson Nolan PLC can assist individuals in identifying the best probate avoidance strategies for their particular situation.
What Happens in Probate Court?
Probate is a legal process in which a judge acknowledges a person’s death and validates their will. If one or more parties contest the validity of the deceased’s will, the executor must defend the estate against these claims. The opposing sides litigate any challenges to the will in court, and the judge ultimately decides on the will’s validity.
The judge appoints an executor to oversee the estate’s administration. In the end, it’s the executor who distributes the estate assets according to the terms of the will. However, before the judge allows an executor to distribute estate assets to beneficiaries and heirs, the executor must identify and locate all estate assets, determine the value of the estate, pay off all estate debt, and pay any necessary federal estate taxes.
What Happens If the Executor Does Not Probate a Will?
If an executor fails to probate a will, the estate property will remain in the deceased person’s name indefinitely. This can cause a wide range of problems, for which an executor may be held personally liable. For example, if assets are locked up in the deceased’s name, there will be no way for anyone to pay any of the bills associated with the estate. This often results in late fees and legal action being taken against the deceased. Moreover, the decedent’s creditors will likely continue to try to collect on any debts, which may lead to repossession. And finally, beneficiaries and heirs of the deceased cannot receive any inheritance they are entitled to until a will is probated.
Speak with the Experienced Brentwood Probate Attorneys at Batson Nolan PLC Today
If you have questions about the probate process, scheduling a free consultation with the knowledgeable will and probate attorneys at Batson Nolan PLC is a great place to start. At Batson Nolan PLC, our attorneys advise and counsel clients through every aspect of the estate planning process, including creating documents such as powers of attorney or a living will. We also offer sound guidance to individuals serving as personal representatives and executors, ensuring they fulfill their duties efficiently and without taking on any unnecessary risks. To learn more and to schedule, a free consultation with our Brentwood probate lawyers, call one of our offices today. You can also connect with us through our secure online contact form.
The experienced lawyers at our firm handle other types of cases as well, including:
