Posts tagged ‘probate’
What does an executor do, exactly?
Most folks I meet with in planning an estate – or probating one – are familiar with the word executor. [An executor carries out (or executes) the wishes of someone who has died leaving a will.] But often, they don’t know exactly what an executor does. So, here is what an executor does, in Tennessee, somewhat exactly:
- Identify and take into your possession the decedent’s assets that were owned solely by the decedent;
- Invest estate assets to produce income for the estate during the administration process;
- Identify and notify each person who is owed money by the decedent, i.e. the creditors;
- If a creditor files a proper claim, then pay the debt owed to the creditor;
- Prepare and file the necessary income, gift and death tax returns due;
- Prepare and file any inventories required;
- After paying all claims from creditors and filing necessary tax returns, distribute the remaining estate assets to those named in decedent’s will, or to those who are to receive decedent’s estate under intestate succession, if decedent died without a will (intestate).
What can the executor NOT do?
- the executor cannot use any of the estate assets to pay personal bills;
- the executor cannot use estate assets to pay any of the beneficiaries’ bills until all estate debts and taxes due have been paid.
An executor has a fiduciary duty to manage the estate assets and take the other actions listed above. Most often the executor will work with an attorney, who assists in preparing the necessary documents, notifying creditors and so forth. If an executor chooses to proceed without an attorney – and this is allowed in most Tennessee counties (Davidson County being a notable exception) – then he or she should at the very least consult with an attorney to understand the detailed actions that accompany all of the obligations I describe above.
Questions about serving as executor of an estate in Tennessee? Drop me a line anytime: cnm@csquaredlaw.com or 615.595.7776.
Please note that this information is general in nature and is not intended as legal advice. Always consult with an attorney to determine what the needs of your particular situation may be.
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.
