Probate - Frequently Asked Questions (and Answers!)

What is probate?

Probate is a legal proceeding necessary to administer certain kinds of property (called probate assets) owned by someone who has died (called the “Decedent”), to confirm that claims, expenses and taxes are properly paid, and to ensure that the remaining estate is distributed to those entitled to receive it under the Decedent’s will - or Tennessee “intestacy” law if someone dies with no will. Probate property generally is all property titled in the Decedent's name individually (not “jointly” with others) and with no legally proper designated beneficiary.  A probate proceeding usually takes place in the probate court of the county where the Decedent lived.

Carpenter & Lewis routinely handles the probate of estates in Knox, Blount, Loudon, and surrounding East Tennessee counties. If the Deceased also owned real estate in another state, additional proceedings (an “ancillary” probate) may be necessary in that state. 

What property is not included in probate?

Often some property will not be probate property, and therefore is not part of the probate proceeding; this generally includes: property held by the Decedent and another individual as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or that transfer on death (TOD) to a named beneficiary; and insurance or retirement benefits that are payable to a named beneficiary.

A point which is often mistaken:  property that must be included in probate and property that is subject to estate taxes are two different matters.  Even if property is not included in probate, it still may be included when adding up assets for federal or Tennessee estate tax purposes.

Why is probate necessary?

Probate is necessary to give the executor or administrator (also often called the “personal representative”) legal authority to deal with the Decedent's probate assets. A will does nothing until a judge determines it is valid.  Once validated and a probate estate is opened with the court, the executor or administrator has the authority and duty to take control of and safeguard the assets of the Decedent's estate. Probate then provides a process for the payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.

What steps does probate require?

Probating an estate requires the appointment of a person to conduct the administration of the estate. If there is a will, this person usually is named in the will and is called an executor. If there is no will or no person is named in the will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.

Carpenter & Lewis provides executors and administrators help with many aspects of administering a Decedent’s estate, including:

       Probating the will or opening the “intestate” (where there is no will) estate 

▪       Qualifying the personal representative

       Identifying the assets of the estate

       Preparing and filing an inventory and accountings for the estate

       Paying claims against the estate

       Distributing assets of the estate to its beneficiaries

       Closing the estate officially with the court

These tasks require the preparation and filing of numerous legal documents, and often the preparation of various notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of inheritance tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court.  Our attorneys are able to assist in all such matters, having walked hundreds of clients through the probate process.

How long does probate take?

Claims against the estate may generally be made up to four months after a probate is opened and the creditor is properly notified by actual or “publication” notice by law.  A small estate that has no beneficiary or creditor issues often can be settled within six months of the appointment of the executor or administrator. However, the administration of the estate can often last more than a year, depending on difficulties or complexities in distribution of assets and any beneficiary or creditor issues.

 

Carpenter & Lewis Probate Attorney Consultation:

For a consultation with one of the probate attorneys at Carpenter & Lewis, please call (865) 690-4997 or you may prefer to send an e-mail to:  contact@carpenterlewis.com.
  Consultations are by appointment only.


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