In Tennessee, probate is a court-supervised process that involves the transfer of property from the deceased person's assets to those entitled to take possession of the property. Probate is required if the deceased person owned assets in his name, regardless of whether a will was present. But only probate property such as real estate and personal property will be subject to the oversight of the court. Non-probate property includes assets that transfer automatically, such as property held in a trust, life insurance proceeds, payable on death accounts and real estate owned by joint tenants or tenants by the entirety.
Proving the Will
When a person dies leaving a valid will, the attorney retained by the estate must submit to the court the will and a petition to open probate in the county where the deceased person lived. A judge will first authenticate the document and make sure it complies with Tennessee law. Unless a self-proving affidavit was used at the time the will was executed, a witness to the signing of the will needs to corroborate the testator's signature. A self-proving affidavit is a notarized document executed at the time the will is signed attesting that the will was executed in accordance with the law. Any challenges to the validity of the will by potential heirs may also be addressed following submission of the will.
Appointment of Personal Representative
The next step for the probate court is the appointment of a personal representative to collect, inventory and distribute the probate property. The person appointed is known as an executor if named in the will or an administrator if not named, or if no valid will is present. If not named, the court will make the appointment according state law, which prioritizes surviving spouses, followed by next of kin. Challenges to the appointment of the personal representative by potential heirs, such as allegations of lack of mental capacity, may be addressed by the court at this time.
Within 30 days after the appointment of the personal representative, the court is required to provide general notice to creditors, so that the creditors may present any claims against the estate. This is accomplished by either newspaper or by posting notice in a public place for a period of two weeks. Creditors are forever barred from collecting on any claims that are not brought within four months after publication or posting. The executor must notify all known creditors of their rights to bring a claim in person or by mail. Claims not brought within 60 days after actual notice is provided are forever barred.
While probate is pending, the surviving spouse, or unmarried minor children if there is no surviving spouse, are entitled to up to a year of financial support from the estate. In setting the amount of the allowance, the court attempts to continue the spouse or children's standard of living, subject to the net value of the estate and any outstanding debts.
Closing the Estate
The executor must present an accounting of the value of all probate property to the court and ensure payment of creditors claims and all taxes. The court then orders a reasonable amount of compensation to the executor for services performed, if requested. The executor may then distribute any remaining property according to the terms of the will or by state law if there is no will. Dying without a valid will is known as intestacy, and in such cases the court prioritizes heirs based on the proximity of their legal or blood relationship to the deceased person. Once distribution is complete, the court will review a final accounting from the representative and the estate is closed.