Probate Law

The area of law commonly referred to as Probate law deals primarily with the administration of the assets of people who have passed away.   The probate process exists to allow the orderly administration of a decedent's estate, the satisfaction of the decedent's just debts and the distribution of the remaining assets to the heirs or beneficiaries.

There are in general two types of estates under Tennessee law - "testate" and "intestate" estates. 
A "testate" estate exists when the decedent had a valid will and the will is properly admitted into probate by the court.  There are a number of statutory requirements for the creation of a valid will.  It is not uncommon for a document which the decedent intended to be his or her last will to be rejected by the probate court because the statutory requirements are not satisfied.  If the will is admitted into probate by the court, the court appoints a "personal representative" to administer the estate in probate.  The court will typically appoint the individual who is named in the will to be the executor or executrix of the estate.  In a testate estate, the personal representative is called an "executor" if they are male or an "executrix" if they are female.   Once the personal representative is appointed by the court and any necessary bond is posted, the administration process commences.

An "intestate" estate exists when the decedent did not have a will or the will fails to meet the statutory requirements.  When there is no will or no valid will, the statutes on descent and distribution in the Tennessee Code detail how the decedent's assets will be distributed.  Since there is no will, the decedent has not formally nominated an individual or series of individuals to handle their estate.   The Tennessee statutes define an order of precedent among the decedent's family and creditors which aids the court in appointing a personal representative.  The personal representative of an intestate estate is called an "administrator" if they are male and an "administratrix" if they are female.

The process of estate administration is essentially the same in testate and intestate estates.  The personal representative must

• give notice to the heirs and beneficiaries of the existence of the estate;

• publish a statutory notice of the existence of the probate estate;

• give actual written notice to known creditors (e.g., mortgage holders, note holders, creditor card companies, etc.);

• review claims of creditors to confirm that they are properly filed, due and payable;

• collect, protect and sometimes liquidate the decedent's assets;

• prepare and file final income tax return(s);

• prepare and file necessary inheritance and gift tax returns;

• determine if the decedent had TennCare benefits and if reimbursement is owed to TennCare;

• file reports and inventories with the court;

• make court appearances when appropriate; and

• timely conclude the administration of the estate which involves payment of allowable claims; payment of court costs and administrative expenses; and distribute the estate either pursuant to the terms of the will and/or pursuant to the statutory provisions.

Probate proceedings can be relatively simple or they can be extremely complex.  The level of complexity depends on the particular circumstances of each estate.  Some courts, such as Davidson County Probate Court, requires that attorneys be retained to assist with the administration of the estate.