When to Probate a Will in Tennessee?

by Joseph Scrofano

    Probate is a necessary process an executor must complete to distribute the assets of an estate pursuant to the instructions set forth in a decedent’s will. The probate process also allows any creditors or heirs to challenge the will. Probate is governed by state law; accordingly, Tennessee state law indicates when to probate a will in the state. Tennessee law also dictates under which conditions an executor must probate a will.

    Time Limit

    According to the Shelby County Probate Court Clerk, there is no time limit to probate a will under Tennessee law. In other words, the law does not require the executor to file the will for probate before a certain time period expires.

    Executor

    The executor has the responsibility to inventory the estate and provide that inventory to the probate court. In addition, the executor must pay all bills and complete any contractual obligations that the estate has pending before she can distribute the assets. While Tennessee law does not explicitly require all wills be probated, it is virtually impossible to transfer assets that are solely in the decedent’s name without filing the will for probate.

    Probate Exceptions

    Four types of property do not need to be probated in order to be transferred. If the decedent held community property, title will automatically pass upon the decedent’s death. The same is true for a married decedent who held property jointly with rights of survivorship. In that case, title automatically transfers to the surviving spouse. Property held in a trust also does not have to go through probate. Finally, insurance proceeds distribute pursuant to the terms of the policy and need not be probated. If a decedent has no assets that fall outside of these exceptions, then that decedent’s will does not have to go through probate.

    Time Limit Exception

    Special rules apply to wills executed by members of the armed forces serving overseas. Tennessee Code Section 32-20-105 provides that a will executed by a member of the armed forces while overseas cannot be probated more than 10 years after Congress or the President declares the end of hostilities of the conflict that caused the armed service member to be deployed overseas. This does not apply to will executed by Tennessee armed service members while they were in the United States pursuant to Tennessee laws for executing wills.

    About the Author

    An attorney and founder of ScrofanoLaw, a general practice law firm in Washington, D.C., Joseph Scrofano has been writing on legal issues since 2008. He holds a Juris Doctor from the Washington College of Law, a Bachelor of Arts with special honors from the University of Texas and a master's degree in international affairs from American University's School of International Service.