What is the Probate Process?
If a person passes away and has significant assets, its likely that the executor will need to go through the probate process. The most formal version of probate requires the executor to present the will to the court and qualify as the personal representative of the estate. If approved the Court will issue letters testamentary authorizing the executor to administer the estate. Probate can be a confusing process, but we are here to try to make sense of it. Outlined below are the general steps that an executor or administrator will have to go through during the estate administration process:
Find the Will
First, someone must begin a search for the will and locate it. Once found, the executor should be notified of the death of the individual and hire an experienced probate lawyer to help with the probate process. The executor should present the will to the attorney for review. If there was no will or one cannot be found, a close relative or friend should come forward, hire a probate attorney, and ask the Court to appoint them as the administrator of the estate. Whether the estate has an executor or administrator, both are called the “personal representative” of the estate. The difference between the terms "executor" and "administrator" are that the executor is nominated by the will to serve as the personal representative and the administrator is appointed by the probate court when there is no will.
The Probate Attorney Prepares the Necessary Documents
The next step rests upon the probate attorney. The attorney should prepare the proper paperwork to open the estate and the personal representative will sign off on the documents. The probate attorney then files the documents with the Court, along with the original will. This process usually takes anywhere from a a day or two to a week or so to complete.
Obtain Letters Testamentary
In Clarksville, Montgomery County, once the probate paperwork is filed with the Court, the Clerk and Master will review the paperwork and original will. If everything is in order, the Clerk and Master will then issue Letters Testamentary if there is a will, or Letters of Administration if there is no will. These Letters are issued to the personal representative of the estate - the executor or administrator. The Letters validate to the world that the personal representative listed in the letters is the person responsible for handling the deceased's affairs. Accordingly, these Letters Testamentary act as a “golden ticket” for the executor or administrator to access anything that is in the deceased's name after their death.
Note: In other counties such as Robertson, Cheatham, Dickson, or Davidson Counties, the Probate Court requires that a formal hearing be held to appoint the executor or administrator. Like Montgomery County, Stewart and Houston Counties do not require a formal hearing.
Publish Notice to Creditors
The Clerk and Master will then notify a local newspaper such as the Clarksville Leaf-Chronicle, or Nashville Ledger of the individual's death and will publish a Notice to Creditors that will run for four (4) months. This Notice to Creditors is a public notice to let anyone that has business with the deceased know that they may come forward and file a claim with the Probate Court against the estate.
Once the Letters are issued to the personal representative, they must notify any identifiable creditors directly. If the deceased owed money to any third party such a credit card company, bank, or other lender, written notification must be made stating that the individual has passed and that the creditor may file a claim with the Probate Court to collect any debt owed to them. Generally, the probate lawyer will handle this notification of known creditors or potential creditors.
Gather Assets, Obtain TennCare Release, and EIN for Estate
The personal representative should begin to locate and gather the assets of the estate and the probate attorney should obtain an EIN (Employment Identification Number) and a TennCare release. The EIN for the estate will allow the personal representative to open an estate account. This estate account can be used to pay the bills and expenses of the estate as well as be a depository for liquid assets during the term of the probate.
A TennCare release is required to be filed before the estate can be closed. This release states that TennCare is not owed anything for medical services and care provided to the deceased. If TennCare is owed money, that claim will have to be satisfied before the estate can be closed.
File Tax Returns
The personal representative should prepare and file the deceased's final federal income tax return for the year in which he or she passed away. The personal representative has until April 15 of the year after the deceased's death in which to file this return. A certified public accountant would be able to assist the executor or administrator with this filing. Also, if the spouse survived the deceased and there is a large estate it may be worth filing a federal estate tax return and/or have the surviving spouse elect for portability.
Handle Any Claims Against the Estate
When the Notice to Creditors is first published in the newspaper, four months have to pass before the Court will allow the executor or administrator to close the estate. If a creditor files a claim with the Probate Court, the personal representative should investigate the claim and determine whether it is worthy of being paid. If the claim is questionable or invalid, the probate lawyer should file an exception to the claim. An exception to the claim against the estate is essentially an objection, stating that the debt should not be paid for whatever reason. The Probate Court will then order a hearing to determine whether the claim should be approved. All approved claims by the Probate Court must be satisfied and resolved before the Court will close the estate.
Distribute the Assets to the Beneficiaries
Once all claims are satisfied, the personal representative should disperse the remaining assets of the estate to the designated beneficiaries pursuant to the terms the will. For example, if a spouse was to receive the house and the children all cash, the personal representative must make sure those wishes are followed. The probate attorney will prepare any deeds necessary to transfer real estate from the estate to the beneficiaries.
Close the Estate
Finally, once all the assets have been distributed, the probate attorney should prepare all necessary documents to close the estate. The probate attorney should meet with the personal representative to make sure that all assets have been properly distributed, all estate accounts are closed, and all claims have been satisfied. If all those objectives have accomplished, the probate attorney will file the documents with the Court, and the Judge will sign off on an order closing the estate.
Contact Experienced Probate Attorney John Crow
We understand that figuring out what direction to take after a loved one has passed is difficult. We are here to help with estate administration and make sense of the probate process. Give us a call today at 931-218-7800 and speak with probate Attorney John Crow.