I receive this question every single day. Many families are confused about probate, when is it required, when is it not required, what assets get probated, what assets do not get probated, how long does it last, and most importantly, what will it all cost?
First, probate in Tennessee is administered by the chancery courts. In the simplest terms, probate is the orderly distribution of a person’s assets (referred to as a decedent) after that person’s death. This includes the payment of any valid debts, putting on notice all creditors and heirs, payment of taxes, and distribution of the assets to the named persons in the decedent’s Last Will and Testament, and if there is no will, then according to Tennessee law.
Next, if you have a Last Will and Testament, that will must be admitted to probate. As I have said before, a will is not valid until a judge says it is. Under Tennessee law, there is a legal obligation upon the executor of the will to ensure that it is admitted to probate for administration.
If there are not enough assets to pay the debts of the decedent, then it is said that there is an insolvent estate. When this occurs, all known creditors will receive notice that the estate is insolvent and will have 30 days to file an objection to the plan of the distribution and closing of the estate.
Next, the assets that typically go through probate are all the assets that are titled in the decedent’s name. This usually includes bank accounts and credit union accounts, real estate in the decedent’s name or co-owned without survivorship rights, investments/stock/bonds in the decedent’s name, and tangible personal property (coin collections, stamp collections, firearms, jewelry, clothing, furniture, cars, RVs, TVs, computers, and anything else in the home).
The assets that typically do not go through probate include bank accounts with a Transfer on Death (TOD) designation completed where the beneficiary is alive at the time of death, real estate owned as joint tenants with right of survivorship, retirement accounts and life insurance with designated beneficiaries, and any property titled in a living trust.
How long does it last is a difficult question to answer as that is usually different for every family. Generally, probate will last a minimum of four months, but can last two years or longer. In addition, the last will and testament can be challenged and contested up to two years after the date of death.
How much does probate cost is a very difficult question to answer. Some attorneys will charge a percentage of the value of the estate or will charge hourly, the executor will usually receive a percentage of the estate, there will be court costs, and other costs of administration as well. In total, probate administration will cost the surviving family several thousands of dollars to complete. AARP has reported that 5% to 10% of an estate will be eaten up in a probate administration. For a $300,000 estate (very average when you add in the home, financial accounts, and all tangible personal property) this will be $15,000 to $30,000 in fees and costs.
If you have more questions regarding probate, then I encourage you to download my Free Book What To Do When a Loved One Dies. If you have other questions about probate or you have had a loved one pass away and need to speak with a Probate Attorney, please contact our office at (615) 490-0477 for an initial consultation.
As always, we are here to help!