Probate Options and Alternatives

When a loved one dies, most people have questions and concerns about settling the estate administration process and whether or not they will need to open probate court proceedings.  “Do I have to file the Will in court?”  “They had so few assets – is probate really necessary?”  “Is there a way to get this over with quickly?”  “How much will this cost?”  A number of factors will determine a family’s options for estate administration.  First and foremost, because every case is unique, it is important to seek legal counsel’s guidance to discuss the particular circumstances and to determine whether or not probate will be necessary.  Choosing the best path from the start can result in savings of both time and money for those administering the estate.

Tennessee law does not require probate to be opened for every decedent (that is, a person who has passed away).  And unless probate is opened, a Tennessee resident’s Last Will and Testament (“Will”) does not need to be filed at probate court once it is properly signed or even necessarily when the testator (person whose Will it is) dies.  However, it is a crime to deliberately hide or destroy another person’s original Will.  The testator may destroy his or her own Will if she or he wishes to revoke it at any time during his or her lifetime.  Consulting with a probate attorney will be necessary to help assess if there are grounds to question the validity of a purported Will or which Will(s) should be submitted to Court if multiple purported Wills are located.

State law includes provisions to help folks bypass probate when there are no known creditors and a decedent owned only a single parcel of real estate, modest tangible property and vehicles, or a modest bank account or life insurance at his or her death.  Next week’s blog will explore some alternatives to probate in greater detail.  If the total value of the decedent’s property does not exceed $50,000, another alternative to probate is to open a small estate administration.  However, in many cases, opening common form probate may be easier and more cost effective in the long run.  Why?  Because administrative snags are common, additional assets may be located that exceed the property value cap, it may be necessary to provide formal notice to potential creditors that cannot be resolved in a small estate administration, and recent statutory changes require small estates to remain open for a minimum of one year.

If probate is determined to be necessary, one of the earliest decisions to make is which form of probate to pursue.  There are two types of probate in Tennessee:  common form and solemn form.  Common form probate is used when the situation is relatively straightforward and a contest of the Will is not anticipated.  Solemn form probate is advised when a Will may be contested or challenged or for special circumstances as recommended by an attorney.  It entails notifying all interested parties up front and inviting them to contest the Will; if they fail to do so, they are not permitted to file a contest later on in the process.  There also is a higher standard for proof of the Will, such as requiring testimony in court from all Will witnesses.  Common form probate will suffice in most situations.  Costs vary greatly depending on the county of residence for the decedent where probate will take place and complexity involved with a particular probate.

Administering a probate estate is no small feat, and the court process is usually time-consuming and full of opportunities for mistakes.  It is generally best to seek advice from a qualified attorney to avoid time-consuming and costly delays.  Check back next week for more details about particular circumstances that may allow you to avoid opening probate.