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.