Types of Probate in Tennessee
When most people hear the word “probate” they immediately think of something long, difficult, and complicated. While opening a probate estate can certainly be unpleasant and time consuming, there are other, minor forms of probate that are quicker, easier, and cheaper. Depending on the circumstances of the probate estate, some actions can take as little as a day or two to wrap up the affairs of the deceased. Some of these forms of probate require the lawyer to fill out a form or prepare a basic deed. Virtually all the time, these forms of probate cost much less that a full, formal estate administration.
Additionally, beyond benefits of reduced costs, speed, and ease of process, one of the less obvious benefits of avoiding a full probate is that many creditors will not proceed against a deceased person's assets when a full estate is not opened. However, when you open a probate estate many times creditors are emboldened to file a claim against the estate because they feel like they are more likely to be paid. Because of that, if you can avoid opening a full probate estate, we generally advise you that you do so in part to potentially keep creditors at bay.
Below we have outlined a few, lesser forms of probate beginning with the size of the estate and whether the person has a will. Feel free to contact probate lawyer John Crow in Clarksville to further explain some of these processes.
Very Small Estates with Less than $15,000.00
If a person passes away with a very small probate estate this form of transferring assets outside of a full probate may fit your circumstances. If the total assets of the person who passed away are less than $15,000.00 and these funds are held in a bank, Tennessee law allows that bank or financial institution to release the funds to the named executor in the will or the next of kin. In other words, if the deceased has less than $15,000.00 in a bank account, the bank can, in its discretion, release the money. However, a probate estate must not be opened for this law to apply. This type of distribution works best when the estate has one or two heirs or beneficiaries
Here is an example of how this works: Brenda passes away in Clarksville with a bank account at First Tennessee that holds $12,000.00. She does not own real estate and her family is looking for a way to access the money without having to file for probate. One of the ways she can do this is by asking the bank to transfer the money to her executor in her will or to her next of kin. If the bank agrees to release the funds, the family's goals are accomplished and probate is avoided. If the bank refuses to release the money, then you may have to file a small estate affidavit with the probate court for release of the funds.
Requirements for very small estates:
- Less than $15,000 total in the deceased person's name at a bank other financial institutions
- No real estate owed by decedent
- No probate opened
Small Estate Affidavit
A small estate affidavit is a quick and efficient way to administer an estate with less than $50,000 and no real estate. Here is an example of how a small estate affidavit works: Dana died with $38,000.00 in a bank account in her name only and she did not own any real estate. She did not have a will. Her daughter hires a probate lawyer and he prepares a small estate affidavit. After 45 days from her death, the probate lawyer files a small estate affidavit with the probate court seeking the court to distribute those assets. The probate court then reviews the small estate affidavit submitted and approves it. The clerk provides Dana's daughter with a stamped certificate allowing the daughter to access the funds. The family member would then take this paperwork to the bank, show it to the banker, and have the banker release the money to the daughter.
If Dana died with a will that appointed her daughter as Executor, then the daughter, as executor, would still file the will with the small estate affidavit in the probate court. The will must be validly executed and witnessed for it to be admitted. The executor would be bound to distribute the assets to the beneficiaries listed in the will.
Requirements for a small estate affidavit are:
- Estate must have no real estate and be under $50,000.00
- Unless permitted by the probate court, 45 days have to pass before the small estate affidavit can be filed with the probate court
- If there is a will, it must be filed with the probate court and the assets must be distributed to the beneficiaries
- Note: Some Tennessee Courts will allow you to file for a small estate affidavit even if you have real estate. That real estate would need to be distributed pursuant to a muniment of title or an affidavit of heirship.
Muniment of Title
Probating a will for muniment of title is a useful form of probate to transfer real estate when that real estate is the only asset of the deceased when he died. To file a muniment of title petition, there must be no other asset that the decedent owned at his death except for real estate and personal property such as furniture, clothing, and the like. Additionally, the deceased must have a will at his death to probate for the limited purposes of establishing muniment of title. Here is an example of how a muniment of title works:
David dies owning two pieces of real estate deeded in his name only. David owns no other assets. He does have a will that leaves one parcel to his daughter and the other to his son. His executor could take the will and file for a muniment of title with the probate court. Once the court issues an order approving the muniment of title, the order is filed with the Register of Deeds office. Note that the only assets that go through this type of probate is real estate. So if David had real estate and a bank account with $10,000.00 that would require a full probate to be filed with the probate court.
Requirements for a muniment of title are:
- The person who died must have owned real estate at his death
- The real estate must be the only assets that the deceased owned, excluding personal property
- The deceased must have a validly executed will
Affidavit of Heirship
An affidavit of heirship is the simplest way of transferring real estate after a person has passed away. When a person dies in Tennessee without a will, real estate immediately vests in the heirs of the estate. The affidavit of heirship is essentially a notice that is filed with the Register of Deeds stating who the new owners of the property are. There is no need to file any action with the probate court to complete an affidavit of heirship. It is important for the attorney to prepare a TennCare release, especially if you are planning to sell the property that was inherited.
Ancillary probate is the probate of a person's estate in another state. Ancillary probate is required in Tennessee when the person who died owned real estate in this state but was not a resident of Tennessee. So for example, if Robert passed away in Florida but owned real estate in Tennessee, it is likely that his executor or administrator would need to file an ancillary probate in Tennessee to transfer the property to the beneficiaries.
You May Not Need a Full Probate Estate Administration
Remember that every estate is different and not all require a full probate. Many times a person may design an estate plan that intentionally limits assets from passing into probate. This type of estate planning is designed to intentionally avoid or limit probate. Other times, the estate may be so small that a full estate administration is not necessary.
Give Us a Call to Find Out What Type of Probate You Need
Probate is often confusing and we are happy to answer any questions you may have about the probate process or estate administration. Probate Attorney John Crow has dealt with many types of estate and has the experience necessary to guide you through this difficult time. Call us a 931-218-7800 to schedule an appointment today.