For most people, a Last Will and Testament serves as the foundation of their comprehensive estate plan. If you are planning to create your Will for the first time, you probably have a number of questions about the process and about the role your Will should play in the estate plan. Because your Last Will and Testament will ultimately be administered during the legal process known as probate, it is also a good idea to learn more about that process. At the Tennessee law firm of Bennett, Michael & Hornsby, we understand that estate planning and the probate process can be a bit intimidating for most people. With that in mind, we have created a set of frequently asked questions and answer about Wills and probate that you may find useful. If you have specific questions about your Will, or about the probate of an estate, we encourage you to contact our office to schedule a consultation.
1. What is a Last Will and Testament?
A Last Will and Testament is a legal document that is used to express an individual’s wishes with regard to his/her estate assets and what should be done with them upon the Testator’s (creator of the Will) death. Gifts made in a Will may be general or specific and may be made to as many different beneficiaries as the Testator wishes. Along with serving as a vehicle for making gifts of estate assets, a Will is the only opportunity the parent of a minor child has to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed.
2. What happens if I die without a Will in place?
When a decedent left behind a valid Will, he/she is said to have died “testate.” When no valid Will was left behind by the decedent, the decedent is said to have died “intestate.” If you die intestate, the State of Tennessee decides how your estate assets are distributed using the Tennessee intestate succession laws. Usually, this means that only close relatives will inherit from the estate in most cases.
3. Who should I appoint as the Executor of my Will?
One of the most common mistakes people make when creating a Will is to simply appoint a spouse, friend, or family member as the Executor of the Will without giving any real consideration to whether the individual is the best person for the job. The Executor of a Will has a number of duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background.
4. What happens if someone challenges my Will?
When a Will is submitted to probate, any interested party has the right to contest the validity of the legal using one of several allowable legal grounds. Contrary to what you may have been led to believe, you cannot contest a Will simply because you are unhappy with the inheritance you were left (or lack thereof). Instead, a Will contest must allege, and eventually prove, a legal reason why the Will is invalid. The Executor of the Will must defend the Will during the litigation. Ultimately, if the Will is declared invalid, the court will look for a previous, valid, Will to use to probate the estate. Is none is located, the Tennessee intestate succession laws will be used to distribute the estate. If the Will is upheld, the probate of the estate continues using that Will.
5. What happens during the probate process?
At the time of your death, you will leave behind an estate that consists of all assets owned by you, or in which you had an ownership interest, at the time of your death. Those assets must now be transferred to new owners; however, before that can occur a number of other steps must take place first, such as:
- Authenticating the decedent’s Last Will and Testament if applicable.
- Identifying, locating, and valuing estate assets
- Allowing creditors to file claims against the estate
- Litigating any challenges to the Will
- Ensuring that taxes owed by the decedent and/or the estate are paid
- Effectuating the transfer of estate assets to the intended beneficiaries and/or heirs of the estate.
6. Does every estate go through formal probate?
No. Most states, including the State of Tennessee, offer some type of alternative to formal probate for small estates. In Tennessee, for example, a Small Estate Affidavit may be an option if the entire estate is valued at less than $50,000 and does not include real property. In addition, not all assets are probate assets, meaning some assets are able to bypass the probate process and be distributed to beneficiaries immediately after the decedent’s death. Examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly help property
- Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation
- Certain retirement, pension accounts
7. How long does probate take?
Given the highly personal nature of the probate process, it is impossible to know ahead of time how long it will take. In the State of Tennessee, formal probate will take a minimum of four months to conclude because creditors have that long to file claims against the estate. Probate can, however, take much longer – even years – to reach a conclusion if the estate includes complex assets or if the estate becomes embroiled in litigation.
If you have additional questions or concerns about a Last Will and Testament or about the probate process in the State of Tennessee, please feel free to contact the Wills and probate lawyers at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.