What is Probate?
The formal definition of probate is the court supervised process of administering a deceased person's estate and distributing the estate assets to the beneficiaries. In layman's terms, it is the process of wrapping up the affairs of a person who passed away. What this means is that when you die, you have debts, obligations, and assets that must be handled. You are the only person that is able to address these matters during your life. But now that you are gone someone must be appointed to close out your affairs. In a formal probate, an executor or administrator is appointed by the Court with the help of a lawyer and they are responsible for:
- Filing the proper paperwork with the Court
- Gathering the assets of the estate
- Administering the estate by paying your debts
- Wrapping up your affairs, and
- Distributing the assets to the beneficiaries
When is Probate Required?
Generally, probate is required when someone passes away with assets in their name only. Joint accounts and accounts that have beneficiaries are generally not assets subject to the probate process. Here are some examples:
- Rodger passes away with a checking account in his name only and a house that is jointly owned with his wife. The bank account is an estate asset. The executor or administrator would have control over that asset during the probate. However, Rodger's house is not an estate as it is jointly owned with his wife. The house would pass to the wife as she has a right of survivorship written into the deed of the property.
- Miriam is the sole owner of an LLC that has several bank accounts. When Miriam passes away, her interest in the LLC becomes a probate asset. Miriam's family would be unable to access the LLC's bank accounts until letters testamentary are provided to the executor of the estate.
- Josh owns a life insurance policy that insured his wife Kristen. Kristen predeceased Josh and Josh never changed the beneficiary of the policy from Kristen to someone else. As such, at his death, Josh's life insurance policy would fall to his estate and the assets would be distributed according to his will or intestacy laws.
Can You Avoid Probate?
With the help of an experienced estate lawyer, probate can be avoided in many circumstances. Remember the key to determining whether an estate must be opened is whether there are assets in the deceased's name only. So to properly plan to avoid probate consider taking the following actions:
- Create a revocable living trust
- Title real estate such that it is jointly owned with a right of survivorship
- Make financial accounts joint
- Add beneficiaries or payable on death designations on financial accounts
Taking these actions ensure that the underlying assets at issue pass to the designated beneficiary or the surviving owner of the real estate or account. These assets would pass outside of the estate and not be subject to control of the court. But note: Be careful when adding non-spouses to financial accounts or real estate as those actions can be problematic and cause unforeseen tax consequences.
Where Do I File To Open an Estate?
Generally, the state and county where the person who died was domiciled would have jurisdiction. A person's domicile is where they intend to ultimately reside, even though they may be living somewhere else temporarily. For example, you have a home in Tennessee and Kentucky. You consider Tennessee home, you are registered to vote in that state, you have a Tennessee driver's license, but you spend most of the year in Kentucky. Under those facts, Tennessee would still be the most appropriate place to administer your estate as Tennessee would be considered your domicile.
In Clarksville, Montgomery County, Tennessee, the probate court is the Chancery Court. The Chancery Court is located at 2 Millennium Plz #101, Clarksville, TN 37040. See the map below for further help.
In Hopkinsville, Christian County, Kentucky, the probate court is the District Court. The District Court is located at 100 Justice Way, Hopkinsville, KY 42240. See the map below for further help.
How Is Out of State Property Administered?
Let's say that you are a Clarksville, Tennessee resident and you own a lake house in Kentucky. When you pass, you will have to open probate in both Tennessee and Kentucky. The primary case will be opened in Tennessee while an ancillary probate will be opened in Kentucky. The ancillary probate is necessary because Tennessee courts cannot control Kentucky property. As such, Kentucky law will apply to the distribution of those assets.
Do I Need a Probate Lawyer?
In most cases, it is advisable to hire a probate lawyer to guide you through the estate administration. Unfortunately, administering an estate can be confusing and has many steps. Often, clients do not need to open an actual estate. Instead, they can take other actions to administer the deceased's assets. To make sense of your options, we would strongly recommend that you speak with a Clarksville probate lawyer to discuss your case and see how to move forward.
Contact an Experienced Probate Lawyer
Estate administration is a daunting and confusing and it is always best to hire a skilled probate attorney that is familiar with the process to guide you. Attorney Lawyer John Crow has the ability and experience to handle these matters. John is more than happy to answer questions you might have. Give us a call today to discuss your issues.