Posts tagged ‘intestate succession’
probate 101 – a quick overview
I’ve been helping folks with wills and estate planning for many, many years. And over the years I’ve helped a number of families probate the estate of loved ones. It seems that lately I’ve fielded more probate inquiries than ever. People are looking for an initial understanding of the probate process. So I thought I would share some general information for those who are looking for the same.
First, I want to note that in most Tennessee counties, an individual can petition the court to open a probate estate without the assistance of an attorney. In many instances, the probate process isn’t complicated – especially when the estate is relatively small and heirs are few in number. Davidson County (Metropolitan Nashville) is one example of a county in which one MUST hire an attorney to accomplish probate, but it’s the exception and not the rule.
I often work with families as ‘counsel’ in a probate matter, but am not the attorney of record. The individual executor opens probate pro se (without an attorney) and I provide guidance to the invidual. This saves the estate an increased expense in attorneys’ fees, and is a great option for smaller estates that have limited cashflow.
However, there are many instances in which an attorney really is necessary. If there is disagreement among the heirs regarding distribution of the estate – especially if someone contests the will in the probate process – an executor really needs an attorney’s assistance.
So, back to the basics. In Tennessee, if someone has a valid will at the time of death, then this is called a “testate estate.” If someone dies without a will, then it is an “intestate estate.”
A testate estate is probated by filing a petition (along with the original will document) with the Chancery Court Clerk and Master, requesting that the will be admitted to probate and that a particular person be appointed executor over the estate. This person will be responsible for meeting all legal obligations required in the probate process – namely, notifying creditors of the death and heirs of the will’s directives. The executor accomplishes distribution of the estate to the heirs, and also handles any necessary tax filings with the state and US government. Often a certified public account is retained to assist with tax matters.
An intestate probate is handled in much the same fashion, with the exception that the executor is called a “personal representative” and is responsible for distributing the estate according to the laws of intestate succession in Tennessee. Read more about intestate succession HERE.
An intestate estate often requires a bit more work on the representative’s behalf, as an inventory and accountings must be filed with the court except under certain, limited circumstances. Intestate probate also requires that the representative post a bond, except under certain circumstances. All of these requirements can increase the time spent as well as expense of probate – a great reason to have a will!
In both kinds of probate, the court requires that creditors of the deceased by notified so that a creditor may file a claim against the estate. Public notice is provided, which is handled by the clerk and master. The executor or personal representative must also directly notify known creditors – the easiest way to do this is to mail a copy of the public notice via certified mail, return receipt requested. Then, the executor can prove that he/she sent notice to creditors, if a claim is filed past the filing deadline.
In Tennessee, creditors must file a claim against an estate within 12 months of death. Failure to do so forecloses all legal rights of a creditor in seeking a claim.
Also in Tennessee, TennCare (the state’s Medicaid provider) must be notified of the death, and must provide a release showing that nothing is due and owing to TennCare. If the deceased was a recipient of TennCare benefits, then the estate likely will have to reimburse TennCare for the benefits received, out of estate proceeds.
In my next Probate 101 post, I’ll cover the legal obligations of an executor/personal representative. Knowing the ‘rules’ makes the probate process must easier to navigate.
In the meantime, if you’re reading this post and have specific queries, feel free to call or email – 615.595.7776 or cnm@csquaredlaw.com.
Exactly WHY do I need a will?
I offer no-cost consultations with anyone interested in planning his/her estate – and while I’ve been talking with folks about their wills and related documents for more than 12 years now, it still amazes me how many people have no idea what happens to their ‘stuff’ when they die without a will.
I practice in Tennessee, so what I’m about to say only applies in this state. Each state has its own laws, but they all do have ‘rules’ about where stuff goes at death if a person doesn’t make other plans through a will.
So where does my stuff go if I die in Tennessee without a will? This is a multi-level question, and depends upon a lot of factors. The formal term for this is ‘intestate succession’ and details are set out in TCA § 31-2-101 through 110.
So where to begin? Pick the description of your situation:
Married with no children: your entire estate goes to your spouse
Married with children: your spouse receives 1/3rd or a child’s share, whichever is greater (e.g. if you are married and have one child, then your spouse receives half and your child receives half; if you are married with three children, your spouse receives 1/3rd and your children each receive 1/3rd of the remaining 2/3rds, which equals 2/9ths; in any of these instances, if a child is deceased, then his/her share goes to his/her living children if any (your grandchildren) or if none, then your remaining children share equally)
Unmarried with children: your children each receive an equal share
Unmarried with no children: to your parent(s), if living; if only one living parent, then he/she takes all
If parents aren’t living: to your brothers and sisters equally (or to a sibling’s children if a sibling is deceased but has children – the children then share equally in the deceased parent’s share)
If no siblings, nieces or nephews: one-half to paternal grandparents (if living) and one-half to maternal grandparents (if living) – the children/grandchildren (whomever is the closest in kinship still living) take the share of a deceased grandparent; example: if your paternal grandmother is living but your paternal grandfather is deceased, then your paternal grand-mother receives ½ of your estate and the rest is shared between your maternal grandparents if both are still living – but if both maternal grandparents are deceased, then their ½ is shared equally by all of their living children (your cousins) or if they have no living children but do have living grandchildren, then the grandchildren receive the grandparents’ share
*However – if there are no living relatives on one side, then the other side receives your full estate; for example, if your paternal grandparents are deceased and have no living children,grandchildren, etc., then your entire estate passes to your maternal grandparents or their closest living relatives if they are deceased
There are yet more twists and turns if you die without any living relatives whatsoever. But that is a subject for another day.
Suffice it to say, most folks would make plans other than the path Tennessee provides when you die without a will. If you are married and have two very young children, do you intend for your children to inherit as much as one-half of your estate? Most often, the answer to this question is no. You likely want your spouse to inherit everything, and have full legal authority to use your entire estate in a manner that is best for your family.
There are many, many scenarios that can be painted, all of questionable desirability, when following the intestate succession flow chart through to many possible conclusions. Controlling the ultimate destiny of your estate is not a complicated process. It involves education and thoughtful consideration. Rely on a knowledgeable estate planning attorney to obtain the education. You will then be prepared for the thoughtful consideration!
Generally the estate planning process takes about two weeks with my clients, from start to finish, and depending on the client’s schedule. Next week’s blog entry will discuss the steps involved in the estate planning process – knowing what to expect can help you make the most of the process and work through it as thoughtfully and efficiently as possible.
In the meantime, feel free to contact me with any questions about this or any other estate planning topic – 615.656.4044 or cnm@csquaredlaw.com.
