Tennessee's probate laws are much the same for both intestate estates -- those without a will -- and testate estates, those that do involve wills. Procedural rules are similar, but with intestate estates, statutes control two important aspects of the process. Dying without a will does not avoid probate, but it can make it a bit more complicated.
Appointment of Administrator
In addition to directing how someone wants his property to pass to his beneficiaries, a will also usually names the individual he wants to act as executor to handle probate of his estate. In the absence of a will, someone must step forward to take the job. Under Tennessee law, a surviving spouse has the first right to administer an intestate estate, followed by the decedent's children. If any other person wishes to serve instead, the decedent's spouse and children must waive the right to do so in writing.
Notification of Heirs
After the court has appointed an administrator for the estate, it will issue letters of administration, authorizing that person to manage the details of probate. Tennessee requires that the administrator send copies of this paperwork to all the decedent's known heirs, alerting them that the decedent has died, that he did not leave a will, and that the administrator will be handling probate.
Distribution to Heirs
Just as when someone dies with a will, the administrator of the estate must pay all the decedent's debts, expenses of the estate and taxes before distributing his estate to his heirs. In Tennessee, an administrator must first use the decedent's personal property to satisfy debts, taxes and expenses, liquidating assets if necessary. Liquidation of real property happens only as a last resort. Heirs receive whatever remains in the estate after debts, taxes and expenses are paid.
Order of Succession
Laws of intestate succession tend to be complicated, and Tennessee's are no exception. Intestate succession is a prescribed order of kin standing in line to inherit when a loved one dies without a will. In Tennessee, a surviving spouse inherits first, but her share depends on how many other family members survive the decedent. If the decedent had no children, his surviving spouse receives his entire estate. If he did leave children, his spouse usually gets only a third. The remaining two-thirds distribute to his children and their children, but grandchildren only inherit if their parent is deceased.
Surviving Spouse's Share
In some cases, a surviving spouse might receive more than one-third of the estate, even if the decedent left children. If the children's shares would each be greater than a third if the decedent had not left a spouse, the spouse inherits a child's share instead. For example, if $90,000 remains in the estate after payment of debts and expenses, and if the decedent left one child, a third of the estate would equal $30,000 and the decedent's only child would inherit $60,000. This isn't fair or equitable, so Tennessee law gives the surviving spouse a child's share instead. Two child's shares -- one for the child and one for the spouse -- would equal $45,000 each. The surviving spouse is entitled to a third of the estate or a child's share, whichever is more.
Escheat of Estate
An estate "escheats" when a decedent leaves no kin at all -- it passes to the state. However, this is an extremely rare occurrence in Tennessee, because the state has no limits on intestate succession. Intestate succession can extend to great-grandchildren or even to distant nieces, nephews or cousins. A decedent would have to have no surviving relatives at all before Tennessee would inherit his estate.