1. What is probate? 

Probate is the legal process that transfers title of property from the estate of the person who has died, known as the "decedent", to his or her beneficiaries.   To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

2. What is a will?

A will is a legal document that states a person’s final wishes.  It is often referred to as a Last Will and Testament.   A will can be used to specify who should receive particular real and personal property upon a person’s death.  A will can also be used to specify who should care for a person’s minor or incapacitated children upon their death.   A person who dies with a will is called a testator or testatrix and is said to have died testate.  In Tennessee, during a probate proceeding, a deceased person’s will is read by a probate court, and the court makes sure that the deceased person’s final wishes are carried out in accordance with their will.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

3.  What is the purpose of a will?

The purpose of a will is to make a person’s final wishes known.  A will is often called a last will and testament.  A will can be used to leave property to people or organizations, name a personal guardian to care for minor or incapacitated children, designate a trusted person to manage property that is left to minor or incapacitated children, and designate an executor, the person who makes sure that the terms of the will are carried out.  Contact our Memphis Probate attorney to get started on your will.

 

4.  What are the requirements for a valid will in Tennessee?

In order for a document to be a valid will, it must be validly executed, the decedent's last will and testament, and it must not have been revoked. To get a Probate Planning Session, contact our Memphis probate attorney.

 

5. What is a testator?

A testator is a man who makes a valid will.  A woman who makes a valid will is called a testatrix.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

6. What is a testatrix?

A testatrix a woman who has made a valid will.  A man who makes a valid will is called a testator.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

7. What is testate?

A person who does with a valid last will and testament is said to have died testate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

8. What is intestate?

A person who dies without a valid will is said to have died intestate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

9. What is a decedent?

A decedent is a person who has died.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning  Session.

 

10. What happens if someone died without a will?

If your loved one died without a will, then they are considered to have died intestate. If a person died intestate, then the court will appoint a personal representative, called an administrator, to administer the probate assets in accordance with the Tennessee laws of intestate succession. Tennessee’s intestate succession laws give a deceased person’s property to their closest living relatives beginning with their spouse and children. If the deceased person did not have a spouse or children, then their property is given to their grandchildren or parents.  This list continues with increasingly distant relatives, including siblings, grandparents, aunts, uncles, cousins, and your spouse’s relatives.  If the court is unable to find any living relative by blood or marriage, then their property will escheat to the state of Tennessee. To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

11.  What happens if someone died with a will?

 If the decedent left a valid will, they are considered to have died testate.  If the will can be proven to be valid, then the court will admit the will to probate and appoint a personal representative, called an executor, to administer the probate assets in accordance with the terms of the will.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

12.  What is "probating the will"?

 A will is a legal document that specifies a person’s final wishes. For a will to have any legal effect, it must be "proved-up" in a Probate Court.  To prove that a particular document is a valid will in probate court, it must be proven that the document was validly executed, that it is the decedent's last will and testament, and that it has not been revoked. In addition to offering the will for probate, the applicant can request that the Court appoint an executor or administrator for the decedent's estate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

13.  Do we have to go through probate?

If the decedent’s estate consists of probate estate, then the family has to go through probate in order to distribute the decease person’s assets.  If the decedent’s estate consists only of non-probate assets, then the family does not have to “go through probate” in order to distributed the deceased person’s assets to heir or beneficiaries.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

14.  What assets are considered probate assets?

All of your loved one’s assets are not considered probate assets.  Probate assets are only those assets that do not transfer automatically upon the person’s death. Only probate assets must go through probate before they are distributed to heirs or beneficiaries.  Probate assets are assets that are in the deceased person’s name at the time of their death and do not pass to another at the decedent’s death by operation of law or by contract.  Thus, bank accounts and life insurance policies with “pay upon death” clauses are not probate assets.  Also, in Tennessee, real estate is not a probate asset, as ownership passes automatically upon a person’s death.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate  Planning Session.

 

15.  When is probate necessary?

Probate is often necessary when the deceased person owned real property, stocks, bonds, and/or bank accounts.  Probate may be necessary if the deceased person had real property that need clear title in order to be refinanced or sold.  Probate may also be necessary if the deceased person had financial accounts and the financial institution has requested Letters Testamentary or letters of administration. To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

16. What are letters testamentary?

Letters testamentary is a document issued by the probate court clerk to an executor or personal representative of a deceased person’s estate. The letters testamentary are issued to the personal representative that is specified in the deceased person’s will.  The Letters Testamentary authorizes the executor or personal representative to settle the deceased person’s estate according to the terms of the person’s will.  Certified copies of the Letters Testamentary are often required by banks, brokerages, other financial institutions, government agencies, stock transfer agents, and other courts before transferring money or other assets to the executor of the deceased person’s estate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

17.  What are letters of administration?

Letters of administration is a document issued by the probate court clerk to an administrator of a deceased person’s estate. The Letters of Administration authorizes the administrator to settle the deceased person’s estate according to the Tennessee’s intestate succession laws.  Certified copies of the Letters of Administration are often required by banks, brokerages, other financial institutions, government agencies, stock transfer agents, and other courts before transferring money or other assets to the administrator of the deceased person’s estate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

18. Who can initiate probate proceedings? 

The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

19.  What is the time limit for offering a will for probate?

In Tennessee, a nuncupative will, also known as an oral will, must be submitted for probate within six months after the death of the testator in order to be valid.  Generally there is no time limitation on the probate of written wills.  An application for the probate of a will should be brought within ten years after the death of the person making the will as letters testamentary or letters of administration should not be granted after ten years after the death of the deceased person.  In Tennessee, any letters testamentary or letters of administration granted after ten years of the deceased persons death are considered void and of no effect by law unless one of the following three exceptions apply: 1. Where a person dies, entitled to a vested or contingent remainder, not reduced to possession in his/her lifetime, for ten years after the termination of the life or other particular/estate on which the remainder depends, letters shall be given to administer upon the estate in said remainder. 2. If a person entitled to distribution was an infant when the deceased died, then, letters may be granted at any time within twenty-two years from the date of death. 3. Also a special administration may be granted for the purpose of prosecuting any claim against the government of the United States without any limitation on time.

To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

20.  Do I need a probate attorney?

You are not required to hire an attorney; however, under certain situations, it will be helpful to do so.  Probate can involve the drafting of important and tedious documents and it is important to have someone who is knowledgeable to provide you with legal advice and oversight.  To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

21.  When can you use Small Estate Affidavit to distribute a deceased person’s assets?

If the assets of the deceased person’s estate consist only of personal property, has a value of $50,000 or less, and at least 45 days have passed since the person’s death without any formal estate being opened in the probate court, one or more of the deceased person’s heirs or the largest creditor of the estate may file an affidavit seeking to administer the estate as a small estate under the Tennessee Small Estates Act. The affidavit must set forth 1) whether the decedent left a will (and if so, the original must be filed), 2) information regarding the unpaid debts of the decedent, 3) information regarding the assets of the decedent, 4) information regarding the persons entitled to receive any of the decedent’s property, and 5) whether or not the affiant chooses to give notice to creditors. If the affidavit is approved, the court will certify the affidavit and issue an order giving the affiant the authority to collect the estate assets, pay the decedent’s unpaid debts, taxes and administration expenses, and distribute the remaining estate assets in accordance with the provisions of the will or, if none, in accordance with the applicable laws of intestate succession. Under some circumstances, the affiant may be required to make bond in an amount equal to the value of the assets being administered.

To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

22.  How do you transfer real property from a deceased person to their heirs or beneficiaries?

In Tennessee, ownership of real property transfers automatically upon a person’s death to the deceased person’s heirs at law or beneficiaries, depending upon whether or not there was a valid will. In order to get the real property of a deceased person titled in the heirs or beneficiaries names, the will can be admitted to probate as a Muniment of Title or an Affidavit of Heirs can be filed with the register of deeds. To get help with administrating your loved one’s estate, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

23.  How do you provide clear title so that you can refinance or sell a deceased person’s home?

In order to get the real property of a deceased person titled in their heirs or beneficiaries names, the will can be admitted to probate as a Muniment of Title or an  Affidavit of Heirship can be filed with the register of deeds.  To get help with admitting a will for probate as a muniment of title or an Affidavit of Heirship, contact our Memphis Probate Attorney to schedule a Probate  Planning Session.

 

24.  What is muniment of title?

Muniment of title is a legal term for a document, title, deed or other evidence that indicates ownership of an asset.  To get help with admitting a will for probate as a muniment of title, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

25.  What exactly is admitting a will for probate as muniment of title?

When someone petitions the court to admit the Will for probate as muniment of title, they are asking the court to find that the document they are submitting for probate is a valid Will, and telling the court that no other action is needed on the estate. The Will says who the beneficiary or beneficiaries are. The Order Admitting the Will as Muniment of Title is signed by the judge, and then a certified copy of the Order and the Will is filed in the real property records of the county where the property is located. The order and the will provide clear title, by acting like a deed and showing the transfer of title in the real property records.  Certified copies of the Order and Will can also be used to change title to vehicles from the deceased person’s names to the persons named as beneficiaries in the Will.  To get help with admitting a will for probate as a muniment of title, contact our Memphis Probate Attorney to schedule a Proabte Planning Session.

 

26.  When can you admit a will to probate for muniment of title?

Under Tennessee law, the title to real property transfers automatically at the the time of the person’s death to whomever the property is devised to(if there is a will) or the person’s heir at law(if they died without a will).  The devisees of the real property may file a petition asking the court to probate the will for the limited purpose of establishing a muniment of title to the real estate. If the petition is approved, the court will issue an order which can be recorded at the Register of Deeds Office to complete the chain of title for title search purposes. In a muniment of title proceeding, the court does not issue letters testamentary and no further administration proceedings are required. The estate is typically opened and closed o the same day.  Oftentimes, title companies will request muniment of title prior to issuing title insurance for real property. To get help with obtaining a muniment of title, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

27.  When is an Affidavit of Heirship appropriate?

Tennessee law provides that title to real property transfer automatically at the time of death to the decedent’s heirs, if the decedent did not leave a will. Anyone may execute and file an affidavit of heirship. An Affidavit of Heirship is a sworn statement setting forth the pertinent facts known to such person concerning the relationships between a decedent and the decedent’s purported heirs. This affidavit may be recorded at the appropriate Register of Deeds Office to complete the chain of title for title search purposes. The affidavit may be used as prima facie evidence in future court proceedings involving a dispute as to the ownership of property of the decedent named in the affidavit. If any person feels aggrieved by the recording of the affidavit, such person has up to six years to bring a lawsuit challenging the facts in the affidavit and, if the lawsuit is successful, the affidavit will be expunged from the public records. It is a Class E felony for any person to willfully, corruptly and falsely swear to any statements in an affidavit of heirship which such person knows to be false.

Oftentimes, title companies will request an Affidavit of Heirship prior to issuing title insurance. To get help with obtaining an Affidavit of Heirship, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

28.  How do I obtain funds from a deceased person’s bank account?

Typically, bank accounts will have a designated beneficiary listed to whom the deceased person has requested the funds to be paid to upon their death.  This is typically called a pay upon death clause.  If there was not a designated beneficiary on the deceased person’s bank account, then after 30 days have passed since the deceased person’s death and an estate has not been opened with the probate court,  a bank having accounts in the individual name of the deceased person that does not total more than $10,000 may, at the bank’s discretion, pay the funds in such accounts to the executor named in the decedent’s will or, if none, then to 1) a creditor for expenses of the decedent’s funeral, 2) a creditor for the expenses of the decedent’s last illness, 3) the decedent’s surviving spouse, and 4) the decedent’s next of kin, in that order. This rule also applies to accounts held at savings and loan associations and credit unions.  Oftentimes, banks and other financial institutions will request letters testamentary or letters of administration prior to releasing the funds of the deceased person. To get help with obtaining letters testamentary or letters of administration, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

29.  What happens to income tax refunds owed to a deceased person?

If no personal representative has been appointed within 60 days of the deceased person’s date of death, the United States Treasury may pay the deceased person’s federal income tax refund directly to the decedent’s survivor or survivors (i.e. heirs), assuming that the amount of the refund does not exceed $500.

Oftentimes, government agencies will request letters testamentary or letters of administration prior to releasing the funds of the deceased person. To get help with obtaining letters testamentary or letters of administration, contact our Memphis Probate Attorney to schedule a Probate Plannning Session.

 

30.  What happens to wages owed to a deceased person in Tennessee?

If wages or other compensation not exceeding $10,000 are owed to the deceased person at the time of their death and the deceased person has not designated a beneficiary to receive payment thereof, the employer can pay these wages directly to the deceased person’s surviving spouse or, if none, then equally to the decedent’s surviving children. Oftentimes, employers will request letters testamentary or letters of administration prior to releasing the funds of the deceased person. To get help with obtaining letters testamentary or letters of administration, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

31.  What happens to money owed to a deceased person?

If the money that is owed to the deceased person does not exceed $10,000 at the time of their death and the deceased person has not designated a beneficiary to receive payment thereof, the debtor can pay these debts directly to the deceased person’s surviving spouse or, if none, then equally to the decedent’s surviving children so long as at least six months have passed since the deceased person’s death without the appointment of a personal representative and, to the extent that the debt exceeds $10,000, such excess amount may only be paid to the court-appointed personal representative of the deceased person’s estate or as otherwise ordered by the court. Oftentimes, debtors will request letters testamentary or letters of administration prior to releasing the funds of the deceased person. To get help with obtaining letters testamentary or letters of administration, contact our Memphis Probate Attorney to schedule a Probate Planning Session.

 

32.  When is formal administration of a probate estate advisable?

Formal administration of a probate estate is advisable when the estate consists of stocks and securities; there are debts of the decedent’s estate which are disputed or cannot be fully satisfied, and/or the beneficiaries either do not get along or are distrusting of one another.  To get help administrating your loved one's estate, contact our Memphis Probate attorney to schedule a fProbate Planning Session.

 

33.  What type of probate is best?

Because every deceased person’s estate is unique, our Memphis Probate attorney will examine your unique situation to determine which probate alternative will likely best suit your particular needs.

To get help with administrating your loved ones estate, contact our Memphis Probate Attorney to schedule a Proabte Planning  Session.

 

34.  What type of estate matters does your Memphis Probate attorney handle?

Our Memphis probate attorney handles the following types of probate cases:

• Small Estate Affidavit(No Administration with Court Approval)- This type of affidavit is used to collect a small amount of money owed to the estate (such as a small bank account). A small estate affidavit may also be used to transfer title to real property that still qualifies as a homestead upon the death of the decedent. The assets of the deceased person’s estate must be less than $50,000, not including any interests in real property.

• Affidavit of Heirship- This type of probate is used to establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit. This type of probate is also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit.

• Probate of Will as a Muniment of Title only(No administration) - This type of probate is used to admit a will to probate so as to give it legal effect. This type of proceeding is often used when the decedent left a will and the only assets in the estate are the decedent's home or a very small bank account.

• Independent Administration (Unsupervised Administration)- This type of probate is used to admit the will to probate so as to give it legal effect and to appoint an executor to administer the estate. This type of proceeding is the most common type of probate where the decedent left a will.

• Court Created Independent Administration (Unsupervised Administration) - This type of probate is used when there is a necessity for an administration and all of the heirs of the estate agree to an independent administration and the person to serve as administrator.

• Dependent Administration (Supervised Administration) – This type of probate is used when there is a necessity for an administration and all of the heirs of the estate will not or cannot agree to an independent administration or the person to serve as administrator. This is frequently the case when the beneficiaries are hostile towards one another or when one of the beneficiaries is a minor.

Because every deceased person’s estate is unique, our Memphis Probate attorney will examine your unique situation to determine which probate alternative will likely best suit your particular needs.  To get help with administrating your loved ones estate, contact our Memphis Probate Attorney to schedule a free consultation.

 

35.  What is contested probate?

Contested probate occurs when all of the heirs and/or beneficiaries do not agree with the administration of an estate.  Many times, sharing an inheritance can be just as bitter as a divorce. The decedent may not have left a will designating an executor to administer the estate. Even worse, the person designated to serve as the executor may be an extremely poor choice for such an important job. In this situation, you need a Memphis probate attorney that can assist you in contesting the appointment of an unqualified person to serve as the executor of the estate. Our Memphis Probate attorney can also assist clients in holding a previously appointed executor to his or her fiduciary duties, and if necessary, can assist in having the executor removed by the Court.  To start protecting your loved one's estate, give our Memphis Probate attorney a call today.