The Probate Process: Myths v. Realities

Posted by John Crow | Jul 18, 2020 | 0 Comments

It's easy to feel overwhelmed when a family member dies. When it comes time to sort out the estate, the many different investments can be hard to track—especially in an emotionally challenging time. Hollywood loves to depict family battles over wills and estates: siblings fighting, betrayals bubbling up and decades-old anger surfacing across courtrooms. It's full of drama. But what's the reality?

In real life, walking through the probate process is, thankfully, much less dramatic. There are steps you can take at any stage of life to help improve the probate experience for your loved ones and family members. In this article we address some of those steps and discuss some common myths and misconceptions about the reality of the probate process in Tennessee.

What Exactly is Probate?

First, let's define terms. Probate is a legal process that begins when a loved one passes away. Going through probate requires:

  • validating a will
  • appointing a personal respresenative for the estate
  • managing the estate
  • paying off creditors
  • providing heirs and beneficiaries their inheritance

The probate process involves filing the will with the Probate Court or Chancery Court in the county where the deceased person resided. At the same time, you will also file a petition to have the court approve the will and appoint the executor who has been named in the will. Depending on the Tennessee county in which you have filed, probate will require one or more court hearings to administer the estate. There will also be administrative costs and attorney fees that will need to be paid. 

The probate process can involve a significant amount of paperwork and many steps, but it's not something to shy away from.

Probate Myth # 1: It Can Take a Lifetime

Probate gets a bad reputation for being a long and tiring journey through the courts that can take forever. You likely have heard many stories about never-ending battles over wills and inheritances, or simply just how stressful and long the processs is. But are these stories accurate?

The Reality

While it is accurate that the timeline can vary depending on circumstances of each case, the truth is that probate can move relatively quickly depending on how much planning is done. The factors that determine the length of time needed to handle probate include projects that can be tackled before death:

  • assessing the value of property
  • adding beneficiaries to accounts
  • paying off debts
  • establishing trusts
  • creating a clear blueprint for investments

But the reality is that, except in extraordinary cases, most probate cases in Tennessee will take between six to nine months to complete.

Probate Myth # 2: The Will is Everything

Sometimes a family member passes away before “everything is in order.” Perhaps they never drew up a will or maybe they never had it validated through a notary. Without that piece of paper, everyone—family members, friends, and other beneficiaries—are out of luck.

The Reality

While not having a validated will can complicate matters, that doesn't mean that the heirs of the deceased will not receive a share of the estate. In general, states have laws that protect the immediate next of kin of the deceased. Spouses have certain statutory rights in Tennessee to claim part of the estate as do children. So not to worry if your loved one died without a will. If you are a next of kin, chances are you will at lease inherit some part of the estate.

Probate Myth # 3: The Probate Costs Eat Into the Estate

The process is so long and involved, going through probate will eat up the beneficiaries' inheritance.

The Reality

Probate costs in Tennessee are relatively modest. Depending on your county, most probate costs in Tennessee for basic, uncomplex estates will cost on average between $3,000 to $5,000 in 2020.

Never hire an attorney that will take a simple probate case on the basis they will take a certain percentage of the estate. The vast majority of the time, the attorney can not jusitify taking such a fee. For example, even if the estate is only worth $200,000 – the average cost for a standard home nowadays – a 5% attorney fee would be $10,000. That would be a very high fee for a realtively simple probate in Tennessee. 

Additionally, with proper estate planning, it's possible to avoid many of the costs probate that your family will likely incur. Early action plans can help you avoid significant complications. Working with an estate planner to identify your smartest path for leaving the kind of legacy you'd like may be a smart solution.

Probate Myth #4: Wills Can't Be Contested

Once you've written it down and signed on the dotted line, nothing in a will or trust can be contested in a court of law.

The Reality

In Tennessee, wills can always be contested. If you feel that you must contest a will, be prepared for a long process. You must be able to show that the person who made the will did not understand what they were signing, was being unduly influenced by someone else, or that something was wrong in the execution of the will (i.e. a missed signature, lack of notary, etc.). Those types of challenges are best handled through a lawyer.

Taking into account the other side, when writing your will you may want to ensure that those who may contest it receive nothing under your will if they decide to challenge it. Working with an estate planner can help ensure that your wishes are correctly reflected and respected so that challenges are unlikely to succeed.

Estate planning can feel overwhelming—or simply like a distant possibility not worth worrying about. But understanding what happens to your financial legacy can bring peace of mind. With an estate plan in place, you can feel secure about doing your best to secure your family and loved ones.

About the Author

John Crow

John Crow is the founder of Crow Estate Planning and Probate, PLC, a boutique law firm with offices in Clarksville, Tennessee and Hopkinsville, Kentucky. He has extensive experience in guiding people through the important and often complex decisions surrounding wills, trusts, probate, conservatorships, and business formations.

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