It is common belief that if you have any type of estate plan, you do not have to go through the probate process. Unfortunately, that may not be the case. Let’s break down the various situations where someone’s estate will have to go through probate in Tennessee.
What is the Probate Process in Tennessee?
Simply put, probate is the court’s process of taking a deceased person’s assets and transferring them to the living. Typically, this includes three different types of assets: real estate, vehicles, and money. Occasionally, it might involve a business. However, any asset that has a joint owner or a beneficiary designation (or a payable/transferable on death designation), will not have to go through the probate process, so long as that designee is still alive.
For any assets in the decedent’s estate that were individually owned, the probate process will begin. In short, this looks like:
- The court will validate a will, if there is one.
- Appointing an executor (if there’s a will) or an administrator (if there’s not a will).
- Identifying and gathering assets to be distributed.
- Paying off any debts following the creditor period.
- Filing and paying any outstanding taxes.
- Distributing assets to the beneficiaries (if there’s a will) or heirs (if there’s not a will).
While this list makes it look like this is a simple process, a probate in Tennessee can last anywhere from 8-10 months. It can also cost several thousand dollars in court costs and legal fees. Both of these estimates are based on a probate case where there are no issues. It’s not uncommon for the process to last a year or more if there are complications along the way.
Can I Avoid Probate?
Probate is not required for any asset that still has a living owner. For instance, if you have a jointly owned vehicle and the other owner is still alive, that asset is now theirs and does not have to go through probate. If you have a payable on death designation on your bank account, those funds will be provided to that beneficiary upon your death, no probate required. For real estate, it is very important to know what the deed to the property says. There are several different types of ownership statuses that individuals can own real estate in. These different types of ownership can distinguish how and who a piece of real estate passes to upon a joint-owner’s passing. It’s best to seek an attorney to review these documents to ensure we’re aware of which ownership status the real estate has.
Probate can also be avoided for those who create a trust and transfer ownership of all assets into the trust. Because a trust is a legal entity that now owns your accounts, vehicles and real estate, there is no need to transfer ownership upon your death. Instead, the trust contains instructions for the successor trustee on who the beneficiaries of the trust are. This ensures the distribution process can happen smoothly, efficiently, and privately without the court’s involvement.
Going through a probate can be a long and emotionally taxing process, especially if you aren’t certain where to begin. If this is something you are facing, we are here to provide guidance during this difficult time. On November 4th, my fellow attorney John Forrest Kelly will be leading a free webinar explaining the probate process in Tennessee. Or, if you’d like to ensure your loved ones don’t have to hassle with the probate process after your passing, schedule a free consultation with Crow Estate Planning and Probate today to discuss an estate plan that can alleviate any burden.