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, probate 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 probate lawyer and they are responsible for 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 probate assets and are not subject to the probate process. Here are some examples:
- Rodger passes away with a Legends Bank checking account in his name only and a house that is jointly owned with his wife. The bank account is a probate asset. The house is not a probate asset as it is jointly owned. The house would pass to the wife as she would likely have 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 appointed 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 probate lawyer, probate can be avoided in many circumstances. Remember the key to determining whether probate is necessary 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 probate and not be subject to control of the probate 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 Probate?
Generally, probate must be filed in the State and county where the person who died was domiciled. 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 Florida. You consider Tennessee home, you are registered to vote here, your driver's license is from here, but you spend most of the year in Florida. Under those facts, Tennessee would still be the most appropriate place to probate 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 Millenium Plz #101, Clarksville, TN 37040. See the map below for further help.
How is Out of State Property Probated?
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 attorney to guide you through estate administration. Unfortunately, probate can be confusing and has many steps. Many times clients will not need a full, formal probate but instead a smaller form of probate would suffice. 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.
How Can I Probate a Will to Avoid a Will Contest?
In Tennessee, there are two ways to probate an estate: in common form and in solemn form. Probating an estate in common form is by far the most popular form of probate. If you chose to probate in common form, heirs and beneficiaries of the estate have 2 years in which to contest the will. However, if you chose to probate in solemn form, the probate lawyer must serve the heirs and beneficiaries of the estate with a copy of the petition and the will. If they choose not to respond to the petition after being served, then they lose the right to contest the will. As such, if you have a concern that a will may be contested, choosing to probate in solemn form may be the most advisable path. If you are worried about contesting a will, speak with a probate lawyer to better assist you.
Will I have to Pay Tennessee Inheritance Tax?
Good news! Tennessee repealed its Inheritance Tax beginning in 2016. So if the deceased person passed on January 1, 2016 or after no inheritance taxes are owed. However, there still is a federal estate tax that applies to estates over $11.4 million in 2019. Thus, 99% of Tennesseans and their families will pay nothing in estate or inheritance taxes at their death.
Contact an Experienced Clarksville Probate Lawyer
Probate is a daunting and confusing and it is always best to hire a skilled probate lawyer that is familiar with probate procedure to guide you. Probate Lawyer John Crow has the ability and experience to handle these matters. John is more than happy to answer questions you might have regarding probate. Give us a call today at 931-218-7800 to discuss your issues.