Losing a beloved family member is difficult, and the probate process required by Tennessee can be overwhelming. Probate describes the process of validating a decedent’s will. It also describes estate administration, which involves identifying estate property, paying estate debt, and distributing the decedent’s property to the beneficiaries.
In Tennessee the Chancery Court serves as the probate court and has exclusive jurisdiction over all matters related to the administration of deceased person’s estates, including the probating of wills. The clerk and master oversee many of the activities in probate proceedings, subject to the review and approval of the chancellor.
To initiate a probate proceeding in Tennessee, a Petition for Probate must be submitted to the Chancery Court along with the will. T.C.A. §30-1-117. There are two types of Petition for Probate: common form and solemn form. Common form is used in cases where the proceeding is expected to be straightforward without complications such as a will contest. Solemn form is used when the will is expected to be challenged or other complications are anticipated. When using the solemn form, interested parties must be notified since objections are expected.
Once the will has been proved and the personal representative appointed, the personal representative is responsible for performing the tasks required to settle the decedent’s estate. The key steps in the process include:
- Estate inventory. The personal representative must locate the assets in the decedent’s estate, secure them, and appraise them. T.C.A. §30-2-301. The appraisal is important because the personal representative must know what is available to pay estate debts and expenses and distribute to beneficiaries or heirs.
- Payment of debt and expenses. The clerk of the court is required to give public notice of the personal representative’s appointment. T.C.A. §30-2-306. This notice serves to let creditors know that the decedent’s estate has been open so that they can submit claims. Creditors have four months to file claims or they will be forever barred. The personal representative must pay all timely filed, valid claims, but only if there are enough assets in the estate. In addition, the personal representative is required to pay expenses related to administration.
- Distribution of assets. The final major step in the administration process is asset distribution. Assets can only be distributed after claims have been paid and money put aside for expenses. Once the executor completes asset distribution, the estate can be closed and probate will come to an end.
There are many things to think about when a family member passes away. The last thing that you want to have to deal with is conflict during the administration process. Whether it is due to complex family relationships, over the terms of the will, disagreements with the fiduciary, or other issues, probate disputes do happen that can lead to probate litigation.
Examples of types of probate litigation include:
- Will contests. When a beneficiary or heir challenges the validity of a will, the issues must be settled by the court. Will contests typically involve allegations of undue influence, duress, lack of mental capacity, forged documents, or improper execution.
- Breach of fiduciary duty. The executor and trustee, if any, are required to perform their duty with honesty and care, with the interests of the beneficiaries in mind. Failure to do so may result in allegations of breach of fiduciary duty that may have to be litigated.
- Disputes over elective shares. Under Tennessee law, whether a decedent left a will or not, surviving spouses are entitled to a percentage of their spouse’s estate. However, there are rules related to how their share must be claimed. Litigation involving the surviving spouse, children, and the personal representative may center on collecting the elective share.
Small Estate Procedure
There is an alternative to formal probate that is available to estates that have limited assets. Instead of filing the traditional petition for probate at the Chancery Court, the executor would file a Small Estate Affidavit. This alternative procedure is available for estates where the value of the probate property is $50,000 or less. Tenn. Code Ann. §§ 30-4-101 et seq.
The affidavit cannot be filed until 45 days after the decedent’s death. By filing the Small Estate Affidavit, the executor requests permission to use the alternative, simplified procedure to settle the estate. If approved, the court will authorize the executor to pay estate bills and distribute assets in a much quicker process.