The death of a loved one is a difficult time for anyone. If you’re the executor of an estate, you face the added burden of overseeing their final wishes after they have passed. But is there a rush to jump into all of the paperwork and legal processes? Here are answers to some of the most common questions about how long you have to start the probate process in Tennessee.
Probate is a legal process for recognizing the validity of a will and distributing the assets of the deceased’s estate. The entire process can take between six months to a year or even longer. Executors should take certain actions within the first 60 days after death to keep the process moving.
What Is Probate?
Probate is a legal process that serves three primary purposes when a person dies:
- Recognizing a will as an official judicial authority
- Appointing an executor or personal representative of the will
- Officially settling all debts and transferring assets from the decedent to the appropriate heirs or beneficiaries
An executor can be a surviving spouse, the next-of-kin, or another party named in the estate. The executor does not have to be a blood relative or a beneficiary. In some cases, a lawyer, accountant, or another representative can fill this role. Once established, the executor handles the responsibility of distributing assets to beneficiaries listed in the will.
Although there is no time limit for filing for probate in Tennessee, it is advisable to do so as soon as possible—usually within the first 30 days after the estate owner has passed. To open the probate process, a will, death certificate, and a petition must be filed at the probate clerk’s office in the county where the deceased lived. If there wasn’t a will, then a family member would go to probate court in order to be appointed as an administrator.
After the will is validated, creditors must be notified of the deceased person’s death so they can make any claims to debts. The probate clerk publishes a notification to creditors and the executor or the lawyer notifies any known creditors of the person’s passing.
The executor must pay off any debts and taxes left behind from the estate’s funds. It is important to note that the executor is not personally financially responsible for paying estate debts or taxes. Whatever money is left from the estate is then distributed to the beneficiaries.
What Happens If You Wait Too Long To File for Probate?
The Tennessee probate process begins once the executor deposits the original, signed will at the probate clerk’s office in the county where the deceased person lived. They are then issued the letters testamentary which grant them authority over the assets and property held by the deceased.
Once the personal representative has been appointed, they have 60 days to:
- Notify everyone who will inherit in accordance with the will or state law
- File a Request for Release from TennCare that they won’t seek reimbursement from the estate for any nursing home or home care that the deceased may have received
It may also be necessary to provide an inventory of assets that must go through probate, but this requirement can be waived if the will states otherwise or all the beneficiaries agree that it’s not necessary.
So what if these tasks don’t happen within 60 days? If the executor is not doing their job, they can be removed from the role. Beneficiaries who are concerned about the slow progress of the probate proceedings can petition the court to force the executor into action, demand a report of actions taken so far, or request that the executor be removed and replaced.
What Assets Don’t Have to Go Through Probate?
While the probate process can feel drawn out, it’s important to remember that probate is not required for all assets. Generally speaking, anything that already has a named beneficiary can avoid the probate process.
Assets that commonly avoid probate estate include:
- Life insurance proceeds
- Living trust assets
- Payable-on-death bank accounts
- Property held in joint tenancy
- Property held in tenancy by the entirety
- Retirement accounts
Is There a Faster Way To Go Through Probate?
The state of Tennessee offers a simplified version of probate for estates valued at $50,000 or less. This small estate process requires the personal representative to provide:
- An affidavit outlining the estate’s debts and assets
- The beneficiaries or heirs must sign the affidavit
- Death certificate
- Contact information of the beneficiaries
The process of applying for a small estate process has changed due to the Tennessee Code § 30-4-101, so be sure to verify what documents and parties are needed so you can successfully apply for a small probate. The requirements to qualify for a small estate may vary depending on which county the decedent lived in. Check the specific requirements for that county to make sure you meet the small estate qualifications.
Once submitted, the court will determine if it will allow the simplified probate within 45 days. The assets can be directly transferred to the beneficiaries if approved.
How Many Years Can an Estate in Probate Stay Open?
There technically isn’t any time limit on the probate of a will in the state of Tennessee. However, letters testamentary are not granted 10 years after the decedent’s passing. There are some exceptions to this rule—such as if a person entitled to a distribution was an infant when the deceased died and now wants to pursue that distribution as an adult. If you believe that you are entitled to a distribution from the estate of someone who passed away several years ago, please contact us. Our lawyers will help you understand your options.
What Happens If No Probate Is Filed?
Personal representatives are in charge of filing for probate after a person has died, but there are cases where a will is never filed. In these cases, issues may occur such as:
- Legal assets not transferring
- Ongoing expenses incurred on the estate
- Creditors pursuing payment
- Difficulty carrying out the wishes outlined in the will
For example, if a man passes away and—by mutual understanding of the family—his son takes control of his house, it’s important to realize that the deed is still in the father’s name until it goes through probate. Delaying probate can lead to all sorts of legal and financial complications down the road.
Or, if a woman passes away and her two children have a dispute about who should inherit her personal property, neither of the children has a valid claim until the property goes through probate. It is generally in everyone’s best interest to properly close an estate.
Benefits of Hiring a Probate Lawyer in East Tennessee
Although it can be a straightforward process, probate can become more nuanced in cases where:
- Assets aren’t easily split up between beneficiaries
- The deceased owned real estate in another state
- There are tense relationships among the family
- A will isn’t present
- There are competing versions of the will
Having a probate lawyer can help with issues like these as well as standard tasks such as:
- Filing the required documents
- Notifying creditors
- Managing debt claims filed against the estate
This is where the probate lawyers at Johnson, Murrell, & Associates step in. We have over 40 years of experience with the probate process throughout East Tennessee including:
We are here for you throughout the entire probate process and in the most complex situations. This includes estate planning to help avoid any problems that may arise during the probate process.
Do you need help navigating the probate process in Tennessee? Contact us today to discuss your options!
Probate allows the courts to legally recognize a will and determine who will execute it. The representative has to provide the necessary documentation once appointed or risk being removed from their role. Certain assets aren’t included in probate including retirement accounts and life insurance proceeds. The probate process can take between six months and a year but can be expedited in certain cases.
At Johnson, Murrell, & Associates, we understand that handling a loved one’s estate and bills after their passing is an emotional, stressful experience. Our job is to make your life easier, which means guiding you through the process so you understand what’s to come. To schedule a consultation, call us at 865-453-9943 or schedule an appointment.
