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Personal Representatives in Tennessee

by Probate
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What Are Personal Representatives

Personal representatives are those who represent the personal interests of the deceased. If a person passes away, the person appointed by the testator to carry out the terms of the Will is named executor. If someone has passed away without a will, the court will appoint an administrator during probate proceedings in place of the executor. Administrators and executors are both personal representatives of the deceased, and bear the responsibility of carrying out their final wishes. Both executors and administrators also bear the responsibility of closing the estate, or probate. Anytime a personal representative is appointed, it means there is a probate case happening. Probate is when someone has passed away and now someone must close their estate and distribute their remaining personal belongings.

Role and Responsibilities

Though getting to be appointed an executor or administrator is a different path, much of the responsibilities are the same. Both executors and administrators bear the probate responsibilities, including but not limited to assessing the estate, paying off debts, and distributing assets. One thing to note is that executors are responsible for carrying out final wishes, whereas administrators are not, because the decedent left no will and no wishes. Where executors distribute assets according to the will, administrators distribute assets according to Intestacy laws here in Tennessee, covered in T.C.A. § 31-2-101.  

Compare and Contrast 

Despite both positions maintaining the same general responsibilities, there are slight differences between the two. Both must go through the probate litigation procedures, attend court hearings, account for assets, and distribute them accordingly, but where an executor distributes according to their Will, administrators follow Tennessee Intestacy laws. Say a woman, Tessa, passes away. Tessa has no children, and is 27 years old. On her commute to work with 2 of her coworkers, the three are hit by a drunk driver in a pickup. According to Tennessee Intestacy laws, distributing her assets according to T.C.A. § 31-2-101 is like so:

  • First, because Tessa is only 27, she didn’t make a will, so the court appoints an administrator to distribute Tessa’s belongings. Then the administrator must find and contact Tessa’s parents’ to inform them of her passing (if they do not already know) and inform them that they are her heirs-at-law. Tessa’s mother and father are divorced, but both are still alive, so the administrator must decide how to split the assets equally among the two. 

Now let’s take the same exact situation, but where Tessa did make a Will:

  • Tessa, despite being 27, already wrote up an early will. During the initial hearing, her Will is validated, and the court makes her mother the executor, like she requested. In her Will, Tessa requests that her physical belongings, like her car, jewelry, and clothes, are given to her siblings. Tessa’s executor, her mother, gives Tessa’s sister her clothes and jewelry, and gives Tessa’s brother her car, so that the belongings are split equally. Tessa also requests any money in her checking account be divided between her brother and sister, but requests that any money in her savings and work retirement/401k be put in her parents’ retirement fund.

These two situations are similar, and yet still distinctly different. Despite all other factors being the same, because Tessa had a Will, the outcome of her case was drastically different. When Tessa passed away Intestate, the court and her family had no idea what her final wishes could have been, and had no idea how she wanted her belongings to be distributed. However, in the opposite situation, where she did have a will, her family all knew what she wanted to go where. Tessa’s family can grieve in peace knowing they fulfilled their daughter’s final wishes, and Tessa can rest peacefully knowing her things went to her family just how she wanted them too. Comparing the situations, we can clearly see the small nuances that make them different from one another. 

Living Representatives

A form of representation, guardianship and conservatorship pertain to watching over the general wellness of another individual, making sure they have all their basic necessities met and are in the best possible state of mind. Guardianship and conservatorship, like executors and administrators, have a distinct key difference. Guardianship is given to those deemed too young to take care of themselves, whereas conservatorship is given to those too old or incapable of taking care of themselves. Like executors and administrators, the responsibilities pertaining to the two roles are very similar. Medical visits, appropriate nutrition, clothes, and education are all responsibilities conservators and guardians have, alongside financial responsibilities over the estate of those they are taking care of. Those being taken care of are allowed to contest guardianship or conservatorship if they want to, and the court only determines conservatorship and guardianship in the most severe cases, as the decision is limiting for the conservatee and guardee in regard to personal choice and preference.

Conclusion

Personal representatives are vital and necessary for the smooth flow of probate, but holding the title comes at a cost. Losing your loved one is already difficult, and if you need help getting a foot in the door, call our office today. Our seasoned attorneys have years of probate experience and would love to help you.

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

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Intestate Probate – How estates are settled without a will

by Probate
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Probate Proceedings

Probate proceedings and Probate court are a special, separate type of law that oversees validating the Will of a deceased person, and dispersing their assets according to their wishes. However, sometimes, there are too many tragic accidents, and that can’t happen. Though probate is a separate division of law, it is not any harder or easier than another. The difficulty of a probate case is measured by the size of the estate, meaning the more assets and debts there are to account for, the longer the process will take. Most probate cases are anywhere from 6 months to 2 years, and can be even longer if the estate is larger. Contesting a probate case, or having someone contest yours, can elongate the process as well. In every probate process there are always the same general steps:

  • Proving the will in probate court, if there is one
  • Making a comprehensive inventory of all the decedent’s properties, assets, and debts
  • Dividing and distributing assets leftover after amortization to the family or heirs-at-law

No matter the type of probate, the size of the estate, every probate case follows the same general guidelines. In Testate probate, it’s much easier to follow this routine, as a Will provides a strict rule to follow. In Intestate probate however, the story is just slightly different.

Intestacy Probate

In Intestacy Probate, there is no will, so the first step, proving a valid will, is out. Instead, there will be a hearing with the court where the administrator of the estate will be named and officialized. This hearing is equivalent to a hearing in a Testate probate case where the will is validated and the executor is officialized. In both cases, the executor and administrator must pay off any outstanding debts, This can be done with inherited assets, by selling off properties, or out of pocket. In Intestate probate, because there is no will of wishes to follow after death, estate division is in accordance with Tennessee statute §31-2-101. In Intestacy the order assets would be divided and distributed is like so:

  • If the deceased had a spouse or children, the assets would first go to them. If a spouse and no children, the spouse would inherit 100% of the assets and properties. If there is a spouse and a child, the estate would be divided evenly among the two. If you have a spouse and 2 or more kids, the surviving spouse gets either ⅓ of the estate, or the children’s equal share, whichever is greater. If the decedent’s own child passed away after having a kid, the grandchild would inherit the deceased assets in place of their parents.
  • If there is neither a spouse nor a child, the estate would pass to the parents of the deceased. If the parents have already passed away themselves, it would go onto the siblings of the deceased. If they were an only child, the estate would pass back up the generational line to the grandparents.
  •  On the off-chance that everyone has passed or there is no living family in the first place, the State would look for the closest relative cousin. If even that has failed, the estate is just turned over to the State. It’s important to note that these laws must be strictly followed, and because of that, state courts don’t particularly care about something like cutting someone off or a damaged relationship. 

All this to consider, it makes you think how much easier it is to have a will. It makes it easy on your family if you pass and they have to grieve you. It may not make your life easier but it brings peace of mind knowing that if something were to happen to you, your things are safe and will go where you want them to.

Assets and Property types

It’s important to understand types of assets and properties. Some accounts and properties are not subject to probate court, whereas some or most are. Probate assets and non Probate assets are distinctly different. Probate assets are assets the Probate court will use to pay off debts and divide between your heirs. Non Probate assets are just that, assets not subject to Probate. This includes, but is not limited to;  any jointly owned property or account, any account with a named beneficiary, POD/TOD accounts, life insurance, retirement, etc. Probate assets would be the opposite, any account or property in just your name that does not have a named beneficiary. Vehicles, jewelry, even boats can also be Probated. Another important piece of information is knowing property types. Certain property types qualify as Probate and Probate assets. The three different property types are;

  • Exclusive property ownership: Exclusive property ownership is when the decedent exclusively owned the property, meaning their name was the only one on the deed.
  • Joint property ownership: Joint ownership is when two or more people share the property together, and both or all names are on the deed.
  • Trust property ownership: Trust ownership is when the decedent names a beneficiary for the property if they pass. The trustee, or the property receiver, would have trust ownership over the property.

Conclusion

There is so much more to explore in Probate, it’s’ such a niche division not many know about. The more information you have access to the less you will stumble on this journey. Dealing with probate proceedings are another weight to add to losing your loved one. That’s why our office is proud to have probate attorneys that work hard for each client, individualizing each case and experience to cater for all your needs.

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

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Understanding Probate – Roles and Responsibilities

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What is Probate Court?

Probate Court is a special court that oversees validating the will of a deceased person and dispersing their assets according to their wishes. In a probate proceeding, an appointed executor or administrator will execute the probate process. Most of the probate process does not actually take place in a courtroom, rather the executor or appointed administrator will take care of the process on their own or with counsel and officialize it in the courtroom. If the probate process does happen in a courtroom, it is usually because the will has been contested or there are debt claims from outside parties. Debt claims are settled either between the executor, or the court will give a ruling if no agreement is made. Contesting a will however, will elongate the court procedures and make the process seem like a mountain too big to climb. In this article you will learn a little about the probate process, factors that may affect the process, and other relevant information. 

What is the Probate Process?

The probate process always has 3 basic, necessary steps;

  • Validating the will, if there is one
  • Paying off any existing outstanding debts
  • Distributing the leftover assets.

If the decedent left a will, they will name the executor in it. The executor is responsible for executing the decedent’s will and carrying out the final wishes. They are responsible for filing the probate petition with the local county probate or chancery court. To file a probate petition, the executor must gather all relevant documents; last will, death certificate, letters testamentary, and notice to creditors and family members. Once submitted and reviewed, the court will schedule a hearing where all those given notice are free to view, and where other family members are given the opportunity to contest the will. If there was no will, this is where the court would appoint an administrator, usually a close family member. When the executor, or court appointed administrator has been officialized, they can start to tackle the probate procedures. First, the executor must compile a comprehensive list of all assets and debts the decedent once owned. This includes things like real properties, land, vehicles, jewelry, accounts, trusts, etc. in their name. Once that step has been taken, the executor can start to pay off any debts your loved one may have had. The debts must be claimed within 60 days after service (or notice of death), and any claimed debts must be paid off before the probate process can move on. Your family can use your assets to do so if they are unable to pay the debts out of pocket. When that is done, you can go ahead and schedule a final hearing where the court will review the presented information and assist in splitting the assets between the heirs. The executor also bears the responsibility of providing the court a final accounting that details any and all transactions made by the executor.The Court will finalize everything and your petition will have its Final Approval. One less thing to worry about during this hard time.

Wills

The existence of a will is crucial in probate cases. If there is one, it must be proven to be both the decedent’s and valid. Families can contest the execution of a will, the validity of a will, they can also contest the named executor in the will and petition for someone else to be appointed. A will is important because it gives an outline to how the deceased wanted their assets split. Wills are guiding documents that ensure the settlement process follows their wishes. Not only do wills protect your assets when you leave, but they provide clarity for your loved ones amidst the emotional turmoil.

Vocab & FAQs

There are some words you should know, as they define how a probate case will be handled. Whether or not they apply to you, it’s good to have the knowledge. These words will help you better grasp what you’re reading:

  • Probate Assets – Probate assets are assets subject to probate after you’ve passed away, things like real properties, cars, your bank account and savings account, and any valuable personal property
  • Non-Probate Assets – non-Probate assets are just that, assets that cannot be subject to probate by the court. This includes, but is not limited to, things like jointly owned properties, bank accounts, trusts or accounts with named beneficiaries, or a decedent’s partner’s properties
  • Testate – When you die in Testate, you have died with a valid will to help disperse your belongings. After it is validated in a courtroom, your family must disperse your belongings according to your wishes. Wills ensure you get what you want even after you have passed away.
  • Intestate – When you die intestate, you die without a will, meaning the court will help decide how to split your assets. They will appoint an administrator, and the administrator will carry out their role according to the factors set forth in 31-2-101.
  • Testator – Testators are people who have made a valid will with their legal counsel. It is ‘any person who makes a will.’
  • Executor – The executor is named in a testator’s will. They have the responsibility of carrying out and executing their loved ones final wishes. A hard, heavy burden.
  • Administrator – Administrators are court appointed executors. They are usually appointed when there is no will left by the deceased, or when families have contested the named executor. If the court decides to appoint an administrator, it will most likely be a close family member.

Each of these words are going to be used in this article. It’s important to understand what you are doing, especially when it pertains to legal matters, as you wouldn’t want to get arrested for a crime you didn’t even know you were committing. There are other things you should be aware of when involved in a probate case, like the intestate order of inheritance. the Right of survivorship or Tenants in common. The intestate order of inheritance, according to § 31-2-104 is as follows; Surviving spouse of the deceased, surviving child(ren), then parents of the deceased, siblings of the deceased, and then finally, if no previous family member is alive, both the maternal and paternal grandparents of the deceased would inherit leftover assets. The Right of Survivorship pertains to how joint ownership of real property would transfer to the other owner without passing through probate, whereas tenancy in common would pass down ownership to heirs through without the probate process. There is always more you can learn to ease the process of losing your loved one, however we recognize the difficult time it may be and are more than equipped to help you and your family through it. Give our office a call and see what steps we can help you take to move forward.

Fact Patterns

There is a big difference between testate and intestate probate cases. Let’s look at some and determine the what would happen in each separate case:

  • For example, Eleanor and James are sixty-three and sixty-seven, respectively. They had 3 children together over their 30 year long marriage; Kaylee, Josh, and Frankie. When James passed away, Eleanor was his named beneficiary, so any accounts he owned with beneficiaries were not subject to probate. However, his other accounts and their estate was, as she was not the beneficiary, they did not jointly own his other accounts, or the property. Because James passed away intestate, we follow the Order of Inheritance pursuant to § 31-2-104, and the estate would pass to Eleanor, then to the children when she passes.
  • Say it’s been 15 years since James passed. Eleanor passed soon after him, and besides the estate, all the assets were split evenly between the 3 children. The parents’ home, left to the youngest, Frankie. Because the home is on the beach, the 3 siblings have been using it as a family vacation house. One year, they are spending the summer together with their families, going to dinner when a semi truck T Bones their car, killing Frankie and Josh. Frankie was the youngest and single, so she had no partner or children for the house to pass down to, and because of this, the house was split by the court between the two remaining siblings in joint tenancy.
  • Here’s another example, Clara is a 26 yr old pediatric nurse. She is on her way home from a 12 hour shift when she accidentally falls asleep at the wheel and veers off the bridge. Clara had a baby in the beginning of college, and has been taking care of him since. Clara, despite being young, had made a will because of her son, and named her parents both heirs and executors, asking them to take in her son should something happen to her. Clara had set up a trust for her son, putting money in it in small increments. Because it’s a trust with her son as a named beneficiary, the trust was not subject to probate, whereas her other assets and belongings were. Her parents are the named heirs, and inherited her leftover assets after probate.

Conclusion

The biggest takeaway from this article should be, always write a will. If you have a valid will, all your assets and properties will be ensured protection, and if you have a will, your things will be dispersed as you want them to be. Wills make the process quicker and easier, especially during a time of loss. There are always steps you can take to smoothen the process, and our firm is here to take those steps with you.

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Probate Essentials: Distinguishing Between Solemn and Common Practices

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Probate is a legal process that occurs when someone passes away involving the administration of their estate. Depending on the circumstances and laws of the jurisdiction, probate can be classified into different types, with “common” and “solemn” being two primary categories. Understanding the distinctions is crucial for anyone involved in estate planning or facing the complexities of probate proceedings. 

Common Probate

Common Probate, also known as informal probate, refers to a simplified or streamlined process for estates that meet certain criteria. The specifics can vary by state and even county, but common features include:

– Less Court Oversight: Common probate involves minimal court supervision compared to solemn probate. This means fewer formal hearings and less stringent requirements for documentation. 

– Affidavits instead of Hearings: Executors or administrators may use sworn statements (affidavits) to verify certain aspects of the estate, such as the validity of the will and the appointment of the executor. 

– Simplified Process: The process is streamlined, making it quicker and more cost-effective. This is advantageous when the estate is small, debts are manageable, and there are no disputes among beneficiaries. 

– Appropriate for Small Estates: Common probate is often used for smaller estates where the total value of assets is below a certain threshold by Tennessee law. This value, in Davidson and Sumner, is capped at 50,000. This means that if your total estate, or all of your assets combined is less than 50,000, it qualifies as Common probate.

Solemn Probate

– Court Hearings: Formal probate involves regular court appearances where the judge oversees the administrations of the estate. This ensures that all legal requirements are met and any disputes are resolved under judicial guidance. 

– Detailed Documentation: The personal representatives appointed (executors or administrators) must file comprehensive inventories, appraisals, and accountancy with the court. These documents provide transparency and accountability in managing the estate. 

– Complex Estate Matters: Solemn probate is suitable for estates with substantial assets, complex financial arrangements (such as business interests), or when there are disagreements among heirs or beneficiaries.

– Judicial Oversight: The court closely monitors the entire probate process to protect the interest of all parties involved, including creditors and beneficiaries, and especially the decedent. 

Choosing Between Common and Solemn Probate

Deciding whether to proceed with common or solemn probate in Tennessee depends on several factors: 

– Estate Complexity: If the estate is simple, with clear beneficiaries and minimal debt, common probate may suffice.

– Contested Issues: If there are any disputes over the will’s validity, concerns about asset distribution, or complex financial arrangements, solemn probate provides a structured process to resolve these issues. 

– Time and Cost: Common Probate is typically faster and less expensive due to fewer court hearings and less documentation. Solemn probate, while more rigorous, ensures thorough compliance with legal requirements but may incur higher legal fees. 

Navigating the probate process in Tennessee requires understanding the distinction between common and solemn probate. Whether you are planning your estate or handling affairs of a loved one, consulting with one of our knowledgeable probate attorneys can provide clarity and guidance for your specific circumstance. 

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.