Probate

If a person dies in Tennessee owning property in his or her name only or with debts in his or her name only, it is often necessary to do a probate proceeding. When a person dies with a Will, it is said he died Testate. A person who dies without a Will, dies Intestate. Testate and Intestate proceedings are conducted in the county where the person resided before death or where he or she owned real estate.

 

There are provisions for probate of small estates, where no real property is in the estate and where the person died owning less than $25,000 in property. These estates are called Small Estates Administration and are fairly easy to obtain. The Executor named in the Will or the next of kin for an Intestate estate will file an Affidavit with the probate court. Notice to creditors is optional. This proceeding is helpful for dealing with small estates where a person only had a small bank account and a car, for example.

 

For larger estates or estates involving real estate, the traditional common form probate is typically used.

 

These procedures are begun in the probate court which is either Chancery Court or General Sessions Court, probate division. Any person may bring a petition for probate and any creditor may also file to open the estate. Usually, the person named in the Will as the Executor will be appointed. Or, for Intestate estates, the next of kin including spouse, adult child, parent, then sibling will be appointed. These persons have the priority to serve in the order named.

 

On approval of the petition, the Court will appoint the Executor or Administrator, publish notice to creditors in the newspaper, and issue Letters Testatmentary or Letters of Administration. These letters are the authority of the person named to act concerning property of the estate.

 

The Executor or Administrator is charged with a duty to notify all creditors, protect and collect all assets of the estate, to pay the costs and expenses of the estate administration, pay funeral costs, pay creditors, and then distribute the property of the estate according to the Will or according to the law of Tennessee. The Executor is a fiduciary. A fiduciary is a person with a position of trust and responsibility. The fiduciary has rules to follow in how the estate property is handled. The fiduciary has to file tax returns, obtain releases from government agencies, pay taxes and expenses, keep good records, manage and invest property of the estate carefully, protect the estate from false or fraudulent claims, and then distribute property and close the estate. This process can take from 6 months to several years. It can be simple or become contested and complicated.

 

At McDonald, Levy & Taylor we have handled probate of estates for almost 30 years. We handle probates in Knox and most surrounding counties. We represent Executors or Administrators and assist them in carrying out their duties. We also represent heirs and beneficiaries who wish to contest a Will or probate proceeding.

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