When a loved one dies, often the last thing you want to think about is getting their affairs in order. Settling a loved one’s financial and personal affairs can seem daunting and overwhelming. During this difficult and emotional time, a probate attorney can guide you through the process and help you avoid costly mistakes.
The first step is to find the original will, if one exists. Tennessee law requires the executor produce the original will. Second, you must determine who the will nominates as executor, as the executor is responsible for bringing the will to probate.
Third, you must determine how assets in the decedent’s estate pass. Assets that pass via POD (payable on death), TOD (transferrable on death), beneficiary designation, or rights of survivorship do not pass under the terms of the will. Assets that pass by POD, TOD, or beneficiary designations often include bank accounts, life insurance, and retirement accounts. All other assets not passing by POD, TOD, beneficiary designation, and rights of survivorship are included as probate property and pass under by the terms of the will (or by the laws of intestacy if no will exists).
If probate property exists, you must determine the appropriate procedure to follow. Tennessee recognizes three procedural forms: (1) small estate administration; (2) full estate administration; or (3) muniment of title. These estates are classified as follows:
- Small estate administration involves $50,000 or less in probate property with no debts.
- Full estate administration requires greater than $50,000 of probate property.
- Muniment of title is a shortened procedure generally used to obtain court permission to sell real estate.
If you are handling a small estate administration, the cost of an attorney might outweigh the benefit when balanced against the total assets of the estate. Should you determine that the estate is too small to justify hiring an attorney, many local probate courts will provide you the necessary petition forms to open a small estate. These forms have certain fees associated with them and specific filing requirements, so they should be completed with great care. The court will review the small estate petition and you will have to appear in front of the judge for a hearing. If the court approves the small estate petition, the court will issue a small estate order granting you the authority to transfer your loved one’s assets.
For a full estate administration, it is generally advisable to retain an attorney. An attorney can help in many ways, including preparing the petition to probate the will, appearing in court, identifying assets of the estate, resolving any issues with documents, navigating family or beneficiary complexities, and otherwise guiding you through the probate process.