There are lots of questions out there about what probate means. Some people throw the word “probate” out as if it’s evil and something to be avoided. However, with a little knowledge and information, it’s easy to see why probate is necessary and what probate actually accomplishes.
Probate is a process, not just an event. It is an orderly method of transferring the money and property of a deceased person to their heirs and beneficiaries. To probate an estate is to go through the formal process of having a court acknowledge the Last Will and Testament of a deceased person; or in cases where the deceased did not leave a Will, officially recognizing that person’s lawful heirs. Then, the court oversees the proper payment of the deceased’s final debts and taxes, and the distribution of any remaining property to the beneficiaries and/or heirs. It is basically the process of winding up the deceased’s affairs and seeing to it that those they wished to receive their worldly goods (or those entitled to a division where there is no Will) receive those things. Without the probate process, legal title to inherited property might be disputed or unresolved, leaving a person’s heirs and beneficiaries with more problems.
The shortest possible period of probate in Tennessee is four months. This is because during the formal probate process, notice by publication in a newspaper of general circulation must be given to the deceased’s creditors and this is the least amount of time allowed for them to file a claim against the estate. Sometimes probate takes longer, especially if the deceased’s assets are complicated or if there are claims that must be litigated because they are not correct or are disputed. There are circumstances in which the claims period can be dispensed with, such as estates which are opened more than a year after the deceased died, or estates that are being probated under the Small Estates Act, or a probate action known as probate for muniment of title (where a Will is being filed with the court to establish which persons are to inherit property but the estate is not being administered).
As a general rule, however, most estates take somewhere between four and twelve months to resolve as long as the deceased’s affairs were pretty much in order. So, the probate process need not necessarily be lengthy. What about the cost of probate? Lots of scare stories are out there about probate costs, which are not valid in most cases. Typical court costs for most estates, including the publication fees, are less than $500. Having legal representation can cost anywhere from about $1,500 – $2,500 for a very simple estate to significantly more where there are claims, disputes, or complicated assets to be disbursed. In most Tennessee counties, attorneys will charge by the hour for the actual time expended, and the fees are paid from the estate’s assets before distribution to any beneficiary. If the beneficiaries are all adults, they can consent to the fees; if some are minors or not capable, the attorney must obtain court approval to charge a fee.
While there are lots of so-called probate alternatives out there, such as joint ownership of property, pay-on-death beneficiaries on accounts, and living trusts, many of these alternatives are not fool-proof and are fraught with potential complications that may cost more to untangle than just probating the estate. Some of these devices can have unforeseen tax consequences or impact a person’s right to certain government benefits, too. Before you decide that probate must be avoided at all costs, you should consult an attorney to get some advice about your particular assets and what probate of your estate would likely involve; as well as any problems that might be created by trying to employ probate avoidance tactics instead. You should get the advice of legal and/or tax professionals before deciding on a course of action involving your money and property that you intend to leave to your family or loved ones, to ensure that the result you want is the one that actually happens after your death. In most instances, if there are problems, the probate process is not the culprit – it’s the failure of the deceased to properly plan for their inevitable demise.
