The first type of assistance that we provide to clients going through probate is guidance in determining whether or not probate is even necessary in their particular case. Many people think they must go through probate when it is not required under Tennessee law. My first task is to look at all of the assets and how they are titled to determine whether or not there are any surviving or joint owners. Sometimes we can avoid probate through what we call a summary administration, which involves informal proceedings that allow us to avoid probate.
Once we determine a probate is unavoidable, we will work with the client to prepare and file a probate petition with the court, which will allege whether or not there was a will and name the heirs. This petition will resolve any questions or concerns that the court may have after we have made our initial filing. Once the executor is named and appointed by the court, we will assist with the preparation and filing of an inventory and the appraisal of estate assets.
We will work with a settlement attorney and the title company to answer any questions and concerns the executor has throughout the process. Many beneficiaries will have a number of questions and will be in a hurry to receive their distribution, so we will reach out to them and answer their questions as well. Once we have completed all of the probate tasks and after a waiting period for creditors to file a claim against the estate, we will prepare and file a closing petition to finalize the probate. We must also show the court the beneficiaries received their respective shares, and that the executor has faithfully executed her duties.
What Is Probate?
Simply stated, probate is the legal process through which a court oversees the process through which debts are paid and assets are distributed according to a will. If a person does not have a valid will, their assets are likely to be distributed according to Tennessee laws of intestacy. The probate court process is similar to a lawsuit which is used to finalize a person’s legal and financial affairs after they have passed away. Someone who has chosen to have their estate probated has no way of controlling, or knowing, what type of probate they may have. There could be objections, will contests or other complicating issues to be dealt with. The primary objective of the court is to make sure creditors have been paid, and remaining assets are allocated to the appropriate legal beneficiaries.
Is There More Than One Type of Probate?
There are two forms of probate: common and solemn. In a common form probate, there is really no formality required in proving the will. It is usually presented to the judge or the clerk, and no one can object to the proof being provided unless initially a contest of the will, and prove they meet certain ancestral requirements. If the judge finds that the will is sufficiently proven, then she will deny the petitioner probate. If the judge finds sufficient proof, then she will make an order admitting the will to probate. The judge will then grant Letters Testamentary which give the personal representative or executor the ability to administer the estate.
Solemn form probate is used when the person preferring the will seeks to resolve any potential objections, or force objectors to make a contest. Solemn form probate is a little bit more like a civil proceeding with a noticed hearing interested parties have an opportunity to appear, file objections, or contest the will. We must notify interested parties of the hearing. If we miss a potential beneficiary or someone with legal standing to file a contest, they will have a continuing right to contest the will at a later date. In other words, the right to contest the will would not be cut off. Notice can be made by service of process or a publication in a newspaper. Residents of Tennessee have to be served within five days before offering the will to probate. Non-residents are notified by publication.
For more information on Assisting Probate Clients In Tennessee, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (615) 628-7775 today.
