Do You Need to Probate an Estate in Tennessee?

Whether you need to probate an estate in Tennessee depends largely on what the deceased person owned, how those assets were titled, whether beneficiaries were designated, and whether someone needs legal authority to handle the deceased person’s property.

Not every death requires a full probate administration.

In some cases, property passes directly to another person without probate. In others, opening an estate may be necessary to collect assets, address creditor claims, transfer property, or give a personal representative legal authority to act on behalf of the deceased person.

The first step is usually determining what the deceased person owned and how each asset passes at death.

What Is Probate in Tennessee?

Probate is the legal process used to administer certain property and obligations of a deceased person.

When a Tennessee probate estate is opened, the court may recognize a will, appoint a personal representative, authorize that representative to administer estate assets, and oversee matters required by Tennessee law.

If the deceased person left a valid will, the person appointed to administer the estate is commonly referred to as the executor.

If the person died without a will, the court may appoint an administrator.

Both are generally forms of a personal representative.

The existence of a will does not, by itself, answer whether probate will be necessary. The assets owned by the deceased person and how those assets are titled are critical to that determination.

When Is Probate Usually Necessary in Tennessee?

Probate may be necessary when a deceased person owned assets in his or her individual name that cannot otherwise be transferred to the proper beneficiaries or heirs.

Common examples can include:

• Bank or investment accounts titled solely in the deceased person’s name without an effective beneficiary designation;
• Vehicles or other titled personal property;
• Business interests;
• Valuable personal property;
• Money owed to the deceased person;
• Certain interests in real estate; or
• Other property requiring someone to have legal authority to collect, manage or transfer it.

Probate may also be necessary when a third party requires documentation showing that someone has authority to act for the estate.

The probate court can issue the appropriate letters establishing the personal representative’s authority after the required appointment and qualification.

Does Having a Will Avoid Probate?

Not necessarily.

This is one of the most common misconceptions surrounding estate planning.

A will does not automatically avoid probate.

Instead, a will generally provides instructions concerning the disposition of property governed by the will and can nominate the person the deceased wanted to serve as executor.

If probate assets remain titled in the deceased person’s individual name, probate may still be required to administer those assets.

Estate-planning devices designed to transfer assets outside probate operate differently from a traditional will.

What Assets May Avoid Probate in Tennessee?

Some property can pass outside the probate estate depending upon how ownership or beneficiary rights were established before death.

Examples may include:

Jointly Owned Property With Survivorship Rights

Certain jointly owned property may pass to the surviving owner by operation of law.

The exact language used to establish ownership matters, particularly with real estate. Joint ownership should therefore be reviewed rather than assuming every jointly owned asset automatically passes to the surviving owner.

Accounts With Beneficiary Designations

Some financial accounts allow the owner to designate who receives the asset upon death.

If an effective beneficiary designation exists, the institution may be able to transfer the asset directly to the designated beneficiary without that asset passing through probate.

Life Insurance

Life insurance proceeds ordinarily pass according to the policy’s beneficiary designation when a valid beneficiary survives and the proceeds are payable directly to that beneficiary.

Different issues may arise when the beneficiary designation is ineffective or when the estate itself is the beneficiary.

Retirement Accounts

Retirement accounts frequently contain beneficiary designations that determine who receives the account following the owner’s death.

Assets Held in a Trust

Property properly transferred into a trust during the deceased person’s lifetime may be administered according to the trust rather than through the probate estate.

Whether a particular asset avoids probate depends upon the actual ownership documents, account agreements, beneficiary designations and other applicable legal requirements.

What If the Deceased Person Owned Real Estate?

Real estate deserves separate attention because Tennessee law treats real property differently from many forms of personal property.

The analysis may involve determining:

• Exactly how the property was titled;
• Whether another owner has survivorship rights;
• Whether the deceased person left a will;
• Who the heirs or beneficiaries are;
• Whether estate debts affect the property;
• Whether the property needs to be sold; and
• What documentation will be necessary to establish marketable title.

This becomes especially important when heirs want to sell inherited property.

A title examination may reveal that additional probate proceedings, affidavits, deeds, court orders or other documentation are needed before a buyer can receive marketable title.

For that reason, families should avoid assuming that a deed showing the deceased person’s name necessarily tells the entire story about what must happen next.

What If the Estate Is Small?

Tennessee provides a procedure for qualifying small estates that may avoid some aspects of a traditional estate administration.

Current Tennessee materials describe a small estate as one in which the qualifying property does not exceed $50,000, subject to the statutory requirements governing the procedure. Tennessee’s small-estate process also generally incorporates a 45-day period following the decedent’s death, although the court has statutory authority in certain circumstances concerning that period.

Importantly, a small estate is not simply an informal agreement among family members. Tennessee law establishes a specific affidavit and limited-letter procedure and requirements concerning the property and persons involved.

Whether the small-estate procedure is appropriate should therefore be evaluated based upon the particular assets involved rather than merely the family’s estimate of the estate’s value.

What If There Are No Probate Assets?

If every asset passes outside probate through valid survivorship rights, beneficiary designations, trusts or other non-probate mechanisms, there may be no property requiring a traditional probate administration.

That does not necessarily mean that nothing needs to be done after the person’s death.

The family may still need to address matters involving taxes, creditors, real property records, vehicles, insurance, final expenses or other legal and financial obligations.

The important question is not simply:

“Did this person have a will?”

The better question is:

“What did this person own at death, and how does each asset legally pass?”

What Happens If Someone Dies Without a Will?

When someone dies without a valid will, Tennessee’s intestate succession laws determine who is entitled to inherit property governed by those laws.

Dying without a will does not necessarily mean that probate can be avoided.

In fact, probate may be particularly important when there is no will because someone may need to be appointed as administrator and the proper heirs must be identified.

Secondary Article: “What Happens When Someone Dies Without a Will in Tennessee?”

What Does a Personal Representative Do?

Once appointed and qualified, a personal representative may be responsible for administering the estate in accordance with Tennessee law.

Depending upon the estate, those responsibilities can include:

• Identifying and protecting estate assets;
• Collecting money owed to the deceased person;
• Providing required notices;
• Addressing creditor claims;
• Paying appropriate estate expenses;
• Maintaining estate records;
• Handling property that needs to be sold or transferred;
• Distributing estate property; and
• Completing the process necessary to close the estate.

The exact duties depend upon the estate and the applicable court orders and statutes.

Because a personal representative acts in a fiduciary capacity, estate funds and property should be handled carefully and appropriate records should be maintained.

What About the Deceased Person’s Debts?

The existence of debts is another reason an estate may require formal administration.

Tennessee probate law provides procedures through which creditors can assert claims against an estate. Estate representatives must determine which obligations should be paid, which claims may require further review, and whether sufficient estate assets exist to satisfy the estate’s obligations.

Family members should therefore be cautious about immediately distributing estate assets after a death.

Once estate property has been distributed, correcting an improper distribution can become substantially more difficult.

How Do You Know Whether Probate Is Necessary?

Before opening an estate—or deciding that probate is unnecessary—it is helpful to create an inventory of the deceased person’s property.

That review should identify:

1. What the deceased person owned;
2. How each asset was titled;
3. Whether the asset has a beneficiary designation;
4. Whether another person has survivorship rights;
5. The approximate value of the asset;
6. Whether the deceased person owed debts; and
7. Whether a will or trust exists.

Once that information is assembled, an attorney can usually provide a much clearer assessment of whether a traditional probate estate, small-estate procedure, or another method is appropriate.

Should You Hire an Attorney for a Tennessee Probate Estate?

Probate matters range from relatively straightforward administrations to complicated estates involving real property, creditor disputes, unclear heirs, contested wills, business interests or disagreements among family members.

An attorney can help determine whether probate is necessary before the family incurs the time and expense associated with opening an estate.

When probate is appropriate, counsel can also assist with court filings, appointment of the personal representative, creditor issues, property transfers, estate distributions and closing the estate.

Obtaining legal advice early can be particularly useful when real estate is involved, because probate and title issues frequently intersect.

Speak With Daniel Law About Probate in Tennessee

Daniel Law, PLLC assists individuals and families with probate and estate administration in Waverly, Humphreys County and surrounding Middle Tennessee communities.

If a family member has passed away and you are unsure whether an estate needs to be opened, contact Daniel Law, PLLC to schedule a consultation.

We can review the assets, ownership documents, beneficiary arrangements and other relevant circumstances to help determine the appropriate next steps.

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Tennessee probate laws may change, and the appropriate procedure depends upon the particular facts and circumstances of each estate.