Probate can be a time-consuming and expensive process. Fortunately, not all estates have to go through probate. After a loved one dies, is probate necessary when there is a will? Not necessarily. In this blog, we’ll explain how probate works, when it is required, and when it is not.
What Is Probate?
Before discussing when probate is necessary, let’s first talk about what probate is and the purpose behind this legal proceeding.
A last will and testament (or will) gives instructions on who is entitled to the assets of a deceased person (the decedent). However, a will must be valid and meet all Tennessee’s will requirements before the executor can carry out the terms of the document. Probate is the legal process of proving the validity of a will and administering an estate. This multi-step proceeding involves the following tasks:
- Identifying the decedent’s assets,
- Notifying all heirs and creditors,
- Settling claims,
- Satisfying the decedent’s debts, and
- Distributing the decedent’s assets to the legal heirs and beneficiaries.
As this list demonstrates, probate encompasses much more than showing that a will is genuine and enforceable.
Is Probate Necessary When There Is a Will?
Just because someone has a will does not mean their estate must automatically go through probate. The need to probate a will depends on the type of assets in the decedent’s estate at the time they pass away.
When looking at a person’s estate, assets can be divided into two categories: probate and non-probate assets.
Probate Assets
Probate assets are anything titled solely in the name of the decedent. If the decedent has probate assets at death, probate is necessary. Remember, a will gives instructions to the executor on what to do with the decedent’s assets. If there are no assets in the decedent’s name to distribute, the will is irrelevant.
Non-Probate Assets
Non-probate assets are assets that are either jointly titled or have a designated beneficiary. You do not have to go through probate if the estate is made up entirely of non-probate assets, regardless of whether the decedent has a valid will. Some common examples of non-probate assets include the following:
- Retirement accounts,
- Life insurance policies,
- “Transfer-on-death” (TOD) or “pay-on-death” (POD) accounts,
- Property owned by joint tenants with rights of survivorship, and
- Assets held in trust.
These types of assets automatically transfer to the joint owner or beneficiary without the need for probate. Even if the decedent has a will that governs these assets, the title, deed, or beneficiary designation supersedes the terms of the will.
When Is Probate Not Necessary?
Probate is unnecessary when the decedent dies with only non-probate assets in their estate. If all the decedent’s property automatically passes to either a co-owner or beneficiary, then there is nothing for the probate court to do.
How Long Do You Have to Probate a Will in Tennessee?
Tennessee law does not give a deadline for submitting a will to probate after someone dies. However, if a will is not submitted to probate, the court will treat the decedent’s estate as if a will never existed. The decedent’s property gets distributed according to Tennessee’s laws of intestate succession. In that case, state law determines who inherits the decedent’s property. There’s a hierarchy of family members who will receive the assets, depending on who survives the decedent. The first in line is the decedent’s spouse, then children, then parents, and so on until all the assets have been distributed. As you can imagine, this may go entirely against the decedent’s wishes.
How Can You Avoid Probate in Tennessee?
Having a will helps streamline the probate process, but it does not avoid it. However, with proper estate planning, you can navigate around probate, saving your family time and money after you pass away.
Retitle Assets
As we mentioned above, an estate that consists entirely of non-probate assets avoids probate. Thus, consider retitling your assets so that they transfer upon death without the need for court intervention. For example, you can retitle real property and include a joint owner or include a beneficiary designation on your bank accounts.
Create a Trust
Trusts are powerful estate planning tools that can help your family avoid probate when the time comes. A trust is a legal entity that can own property and is managed by a trustee for the benefit of someone. Property transferred into a trust is no longer in your name and becomes a non-probate asset.
Trusts come in all shapes and sizes and can be customized to meet your needs. To learn more about integrating a trust into your estate plan, speak with one of our estate planning lawyers.
Small Estate Affidavit
Tennessee offers a probate alternative, called a small estate affidavit, for estates with a value of $50,000 or less. This streamlined process is meant to avoid, or at least reduce, the time and expense of probate for estates with few assets.
To file a small estate affidavit, there are a few requirements to meet. First, the person filing the affidavit must wait 45 days after the decedent’s death to submit the form. Second, they must ensure no one has come forward petitioning to serve as the executor of the estate. Next, the small estate affidavit form must be filled out and accompanied by the decedent’s will, if any. Lastly, they must file all documents with the probate court where the decedent resided.
The Attorneys at Batson Nolan PLC Can Help With Your Estate Planning and Probate Needs
After losing a loved one, navigating the legal process of probate can be exhausting. That’s where we come in. At Batson Nolan PLC, we have been helping Tennessee families transfer their wealth since 1860. Our attorneys have hundreds of years of combined legal experience and collaborate to bring you the best possible service. Whether you want to design your estate to avoid probate or need help probating a loved one’s will, reach out to us. Call our firm or go online to request a consultation with one of our estate planning lawyers.