Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, legal authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Probate in Tennessee commonly takes six months to a year. It may take longer there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
When Probate Is Necessary
Not all assets need to go through probate. Only assets that the deceased person owned in his or her own name, alone, must go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up what’s called the “probate estate.”
Here are common kinds of assets that are NOT part of the probate estate:
- Property held in joint tenancy: A home, bank account, or other asset held in joint tenancy by more than one person. When one owner dies, the survivor automatically owns the property. Learn more about avoiding probate with Joint Ownership.
- Property held in tenancy by the entirety: If the deceased person owned real estate with his or her spouse in tenancy by the entirety, the surviving spouse is automatically the sole owner. Learn more about avoiding probate with Joint Ownership.
- Payable-on-death bank accounts: A payable-on-death account is a bank account that passes to the POD beneficiary, without probate, at the death of the account holder.
- Assets registered in transfer-on-death form: Tennessee residents can name transfer-on-death (TOD) beneficiaries for securities. Assets registered in TOD form pass directly to the named beneficiary without probate. Learn more about TOD registration for Securities and Vehicles.
- Life insurance proceeds: When life insurance policies or annuities specify a beneficiary, the proceeds do not go through probate.
- Retirement accounts. The funds in retirement accounts do not go through probate if the account holder designated a beneficiary. For more on this, see Retirement Plans and Estate Planning.
- Living trust assets: Assets held in the name of the trustee of a living trust. Learn more about Living Trusts
An Alternative to Probate for Small Estates
Tennessee provides an alternative to regular probate if the estate is small. The simplified procedure is available if the total probate estate is worth no more than $25,000, not counting real estate. It can be used to transfer all estate assets except real estate. Learn more about simplified probate in Tennessee.
The Tennessee Probate Court Process
If the deceased person left a will, probate is begun when the person named as executor in the will deposits the original, signed will in the county clerk’s office in the county where the deceased person lived. The court issues this person “letters testamentary,” which give the person authority to take charge of estate assets. If there’s no will, a family member—usually the surviving spouse or grown child—asks the court to be appointed as administrator, and the court issues “letters of administration.”
The executor or administrator—known generally as the personal representative of the estate—has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate, puts the money from the deceased person’s accounts in it, and uses the funds to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
If there’s a will, its validity must be proven in court. If the will was signed in front of two witnesses, one of them must either come to court or submit a sworn statement on the validity of the will. If the will wasn’t witnessed, but it is signed and entirely in the handwriting of the person who made it, it’s called a "holographic will." To prove its validity, two witnesses must testify to the authenticity of the handwriting.
The personal representative must notify creditors of whom he or she is aware. A personal representative can usually find the names of creditors by going through the deceased person’s financial records, mainly tax returns and checkbooks.
The court clerk also publishes notice of the death in a local newspaper, to give creditors a chance to make claims. Depending on whether or not, and when, the creditors receive actual notice of the probate proceedings, they may have from four to 12 months to make a formal claim. Most creditors submit claims informally, and the personal representative pays them.
Within 60 days after being appointed, the personal representative must:
- Turn in an inventory of the assets of the deceased person that must go through probate, unless the will states that an inventory does not need to be filed or all beneficiaries agree that it’s not required.
- Notify everyone who stands to inherit under the terms of the will or state law.
- File a Request for Release with TennCare, the state Medicaid agency. A release is proof that the agency won’t seek reimbursement from the estate for nursing home or home care received by the deceased person.
When debts and taxes are paid, the personal representative can pay what’s left of the probate estate to the people entitled to inherit it.
If the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state. That’s called an ancillary probate.
It’s the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the deceased person’s taxable estate is very large—for deaths in 2013, more than $5.25 million. More than 99% of all estates do not owe federal estate tax.
Tennessee also has its own estate tax, which is imposed on estates worth more than $1.3 million for deaths in 2013. The tax is referred to in Tennessee as an inheritance tax, but it functions like an estate tax because it affects only estates that have a total value of more than a certain dollar amount. The tax is being phased out and will be gone as of January 1, 2016.