FAQs

An executor—also called a personal representative—is the person appointed to carry out the instructions in a will and handle the administration of the estate after someone passes away. While the specific process can vary slightly depending on state law, the general responsibilities of an executor include:

• Filing the will and appropriate paperwork with the probate court to open the estate

• Notifying beneficiaries and creditors of the estate

• Collecting and safeguarding the deceased’s assets

• Paying valid debts and final expenses

• Filing final income and estate tax returns

• Distributing remaining assets to the beneficiaries according to the will

Serving as an executor can be a complex and time-consuming role, especially when dealing with court procedures, financial institutions, or disputes between heirs. Our attorneys help guide executors through every step of the process to ensure they meet all legal and fiduciary responsibilities.

You should consider estate planning as soon as you are legally an adult. Life can be unpredictable, and having a plan in place ensures that your wishes are honored and your loved ones are protected, no matter your age or stage of life. Here are a few key moments when estate planning becomes especially important:

• Turning 18: At this age, you can legally create documents like a healthcare directive and power of attorney to name someone you trust to make decisions if you become incapacitated.

• Getting married or entering a serious relationship: You’ll want to ensure your partner is included in your medical and financial decision-making.

• Having children: You can name a guardian for your minor children and outline how assets should be managed for their benefit.

• Buying a home or acquiring assets: A will or trust can help direct what happens to your property and avoid unnecessary delays in probate.

• Experiencing major life changes: Divorce, remarriage, retirement, or the death of a loved one are all times to review and update your plan.

Estate planning is about being prepared. It’s not just about what happens after you pass—it’s about protecting your choices while you’re alive and easing the burden on your family.

If you pass away without a will, the court will decide who should have custody of your minor children. While many parents assume that a specific family members, such as a grandparent, will automatically gain custody, it doesn’t work that way. The court has the final say and will appoint a guardian based on what it determines is in the best interest of the child.

Any verbal instructions you’ve given—no matter how clear or heartfelt—are not legally binding. The court cannot enforce informal conversations or preferences that aren’t documented in a valid will. Without written guidance, multiple family members may step forward, leading to confusion, disputes, or even a lengthy custody battle.

Naming a guardian in your will doesn’t guarantee that person will be appointed, but it strongly influences the court’s decision. Including this nomination in your estate plan is the best way to make your wishes known and help protect your children’s future.

A Durable Power of Attorney (DPOA) remains in effect even if you become incapacitated, but it does not last forever. It ends when:

• You revoke it while you are still mentally competent;

• You pass away – at death, your agent’s authority under the DPOA immediately terminates;

• A court invalidates it — for example, due to fraud, undue influence, or incapacity at the time it was signed;

• If a termination date is specified in the document, it will end on that date.

Importantly, a DPOA does NOT give your agent authority after your death. At that point, control over your assets and decisions passes to the executor named in your will or to a court-appointed administrator if no will exists. That’s why a DPOA should be part of a broader estate plan that also includes a will or trust.

The timeframe to contest a will depends on the state where probate is filed. In Tennessee, you generally have two years from the date the will is admitted to probate. However, it’s important to act quickly. Once the estate is distributed, it can be difficult or impossible to recover assets, even if you’re still within the two-year window.

In Kentucky, the statute of limitations is also two years, but it begins from the date the court accepts the will into probate. This means the clock starts ticking as soon as the will is officially recognized by the court, not when you first become aware of it.

Because these deadlines are strictly enforced, and probate can move quickly, it’s crucial to consult an attorney as soon as you suspect there may be a legal issue with the will, such as undue influence, lack of capacity, or improper execution. Waiting too long may permanently bar your claim.

There are several legal grounds to contest a will, but simply being unhappy with its terms is not enough. To challenge a will successfully, you must show that it is legally invalid due to one or more of the following reasons:

• Lack of Capacity: The person who made the will (the testator) did not have the mental ability to understand what they were doing at the time the will was signed, such as understanding the nature of their assets, who their beneficiaries were, or what the will was doing.

• Undue Influence: Someone improperly pressured or manipulated the testator into signing the will, often for their own benefit. This often arises in cases involving caregivers, new romantic partners, or individuals in positions of trust.

• Improper Execution: The will was not signed in accordance with state legal requirements, such as lacking the proper number of witnesses or not being signed by the testator.

• Fraud or Forgery: The will was created or altered fraudulently, or the testator was misled into signing it under false pretenses.

• Revocation: A newer valid will exists, or the will in question was revoked prior to the testator’s death.

Contesting a will can be complex and time-sensitive, especially in Tennessee and Kentucky, where strict filing deadlines apply. If you suspect something is wrong, it’s important to speak with an experienced probate attorney as soon as possible to review your options.

Avoiding probate is a common goal in estate planning and for good reason. Probate can be time-consuming, costly, and open to the public. The good news is that there are several ways to keep your assets out of probate and ensure a smoother transition for your loved ones.

Here are the most common strategies:

• Create a Revocable Living Trust: This is one of the most effective ways to avoid probate. Assets titled in the name of your trust pass directly to your chosen beneficiaries without going through court.

• Name Beneficiaries on Financial Accounts: Retirement accounts, life insurance policies, and some bank accounts allow you to name a beneficiary. These assets transfer automatically upon your death and bypass probate.

• Use Transfer-on-Death (TOD) or Payable-on-Death (POD) Designations: You can add TOD or POD designations to bank accounts, investment accounts, and even vehicles in some states.

• Own Property Jointly with Right of Survivorship: Assets like real estate or bank accounts held jointly with another person can pass directly to the surviving owner outside of probate.

• Make Lifetime Gifts: Gifting assets while you’re alive can reduce the size of your probate estate and simplify the process for your heirs.

Every estate is different, and not all strategies are right for everyone. Working with an experienced estate planning attorney can help you build a plan that protects your family and keeps your assets out of probate court.