Probate can be a confusing process for many people. Few individuals want to go to court to open a probate estate after losing a parent, spouse, or other loved one. However, with the proper assistance and information, the process can be relatively painless.
If a person dies having probate assets, regardless of whether there is a will, an estate will have to be opened to ensure that those assets are properly transferred to the heirs. Generally, a probate asset is any property that does not have a beneficiary or transfer on death designation. This could include bank accounts, CDs, stocks, investment accounts, and real estate in some circumstances. It also includes anything payable to that person’s estate.
The first step in the process is always to determine if the person had a will. The will should designate a person who will act as Personal Representative, commonly called an Executor, who will gather the assets, determine if an estate needs to be opened, and be responsible for distributing the property according to the will.
If the personal representative determines that an estate should be opened, he or she must go to court with the will, file a petition to open the estate, and ask the court to approve the will and the appointment of the personal representative of the estate. The court will then issue “letters” demonstrating that the estate is open. The representative will file notices to the beneficiaries of the estate and to any potential creditor, and open an account in the name of the estate. Creditors will have four months to file claims against the estate.
The role of the court is to oversee the proper distribution of property under the will (or, if there is no will, under the laws of the state of Tennessee). When this has occurred, the representative may file a petition to close the estate.
It is highly recommended that personal representatives talk to an attorney before beginning this process. If you have been appointed executor in a will or need assistance administering an estate, contact The Pickler Law Firm at (901) 316-0160 to schedule a free consultation with an experienced attorney.