Probate and Trust Administration Frequently Asked Questions (FAQ)
Introduction
At Ingraham Pautienus & Tidwell, PLLC we have assisted numerous clients in the preparation of Wills and Trusts and guided their families during probate and estate administration proceedings. We know the process and the possible pitfalls of creating the wrong vehicle for protecting and distributing your assets just as you want it done. Be it probating a Last Will and Testament, filing a Petition for Intestate Administration, handling a Small Estate Affidavit, or helping clients with a Trust Administration. We are available to help in your time of need.
Our firm knows the finer details of Estate Law, what to do and what to avoid, and how to protect our clients so that they can experience the best of possible outcomes.
Our firm assures that our clients get the full benefits and protection that Tennessee Law allows. If you need Estate Law (Wills, Trusts, Probate) legal advice then you want the Nashville firm of Ingraham, Pautienus, & Tidwell at your side!
Our firm's partner, Nick Tidwell, leads our team for all matters related to Nashville and Tennessee Wills, Trusts & Probate concerns.
You may contact Nick directly through this website at Contact Nick, you may use our firm's on-line Contact Form, or call us at (615) 370-3010 for immediate action on your case.
F.A.Q.
Frequently Asked Nashville Tennessee Probate & Trust Law Questions
The following questions are among the most frequently asked of our firm relating to Wills, Trusts & Probate and how the Nashville Tennessee Law Firm of Ingraham, Pautienus, & Tidwell addresses these issues.
If your questions are not answered here or you need more information please call us or send them through our Contact Form.
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A Last Will and Testament is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death. A Will can address such items as who will administer your estate when you are gone, what specific gifts or bequests you would like to pass to certain people, and if you have children under 18 years of age, who you would nominate to serve as guardian.
Although there are some exceptions, a valid Will must have the following features:
It must be in writing.
It must be signed by you.
It must be witnessed by at least two other people present at the time of signing. They need to acknowledge they were present and must sign the Will as witnesses in your presence.
The entity known as a trust is essential in creating strategies for accomplishing asset protection, estate planning, and privacy benefits. A trust is typically in the form of a written agreement between the settler (trustor), who is the person creating the trust, and the trustee. The written trust agreement provides that the settlor will transfer certain assets to the trustee and the trustee will hold those assets for the benefit of the named beneficiaries.
There are a variety of types of trusts including, living trusts (or revocable trusts) testamentary trusts, and irrevocable trusts. Our firm can guide you as to the right trust to create to meet your needs and objectives.
Probate is a legal process that involves proving in court that a deceased person's Will is valid, inventorying and valuing assets, paying debts and taxes, and distributing the remainder of the probate estate according to the decedent's Will. Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are generally paid from assets of the estate. Essentially, probate is the process where the Personal Representative does what the Testator/Testatrix stated in his/her Will.
All the property, be it real or personal, that a person owns is part of his or her "estate." An estate can include clothes, jewelry, tools, cars, musical instruments, a house, the land the house is built on, cash, bank accounts, retirement accounts, stocks, bonds, and other items. After a person dies, his or her estate must be distributed. How an estate is distributed is determined by several things: 1) the terms of a Last Will and Testament or Trust , 2) the way property is titled, 3) the laws of the state in which the person lived if no Will was executed, and 4) the type of asset.
Dying without a Will is called dying "intestate." If you do not have a Will or other estate planning prepared when you die, your estate will be distributed according to state laws, which may or may not be the way you want it to be distributed. In Tennessee, when a person dies intestate, after the payment of debts and other expenses of the estate, a person's property passes to their heirs-at-law. Under Tennessee Code Annotated Section 31-2-104, if the decedent has a spouse and no children then the entire estate passes to the surviving spouse. If the decedent has a spouse and living children, then the surviving spouse receives either one-third, or a child's share, whichever is greater and the remainder is divided among the children. If there is no surviving spouse but surviving children then the entire estate passes to the children in equal shares. The statutes go further and direct how assets are to pass if there are no children or a surviving spouse. The estate of a decedent will usually only be held by the State of Tennessee (in a process called escheating) in the event there are no heirs-at-law of the decedent. However, it is rarely the case that a person has no "heirs-at-law," as this can potentially include cousins and other relatives.
The probate process begins once an Order for Probate is entered by the court and the Letters Testamentary are issued to the appointed Personal Representative.
Letters Testamentary is the documented proof supplied by the clerk of the court subsequent to the entry of an Order for Probate. This document is necessary for the Personal Representative in order for him/her to conduct business on behalf of the estate. Letters Testamentary are supplied in the cases where a Last Will and Testament is admitted to probate. Letters of Administration are supplied in the cases where a person dies intestate (without a Will).
Contrary to popular belief, not all estates take years and years to resolve. It is possible for a probate to be completed in several months in many instances; however, the complexities of the issues involved affect each administration. In most probates, notice to creditors must be published in a newspaper of general circulation in the county where the decedent resided. Creditors have four (4) months from the first date of publication to file claims with the clerk of the court. Therefore, this four month creditors' period is usually the largest time obstacle in a probate administration. As with most legal issues, there are exceptions, and we are ready to provide the necessary guidance to help you move the process as expeditiously as possible.
The question of whether a Trust is better than a Will has no simple answer since so many factors must be considered in estate planning. Your decision is personal and individual, and it must suit your particular situation. What is right for one person might be very wrong for you. After reviewing your circumstances and goals, our firm can advise you as to which will best meet your planning needs.
In the event there are insufficient assets to pay all of the creditors, then the estate is "insolvent." There are specific Tennessee statutes governing the insolvency process, including specific notice and filing requirements.
In most cases, no. If an individual has co-signed or guaranteed a debt of the decedent, then it is possible to be personally liable. However, if there are insufficient assets to pay claims owed by the decedent's estate, then the insolvency procedure is used.
Generally, probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. These may include real property and personal property, such as stocks, bonds, bank accounts, vehicles, collectibles, etc. We can review the estate inventory and guide you in determining which, if any, type of administration is needed.
Property that is in the name of a trust will be excluded from probate. Jointly owned assets containing a right of survivorship may be excluded from probate, assuming appropriate records, are filed with appropriate agencies and entities. Depending upon the designation of beneficiaries, life insurance proceeds and retirement accounts may also be excluded from probate. We can help you identify any assets which may be excluded from the probate process.
Each day is a gift, and proper planning should not be delayed since we are not guaranteed tomorrow.
A person does not have to be wealthy or elderly to do some serious thinking regarding an estate plan. Often a person with a small or modest estate is most in need of a plan to provide for the proper transfer of that property to his/her designated beneficiaries at death.
There are several reasons for having a Will or a Trust. Most importantly, having a Will or a Trust allows you to decide who will receive your property rather than leaving that choice to state law.
In order to implement the wishes of the decedent, be it through a Will, Trust or other estate planning tools, steps must be taken to ensure the documents are followed. Our attorneys can assist in helping you through the various processes.
Yes. Tennessee law provides that assets of the estate can be used to pay for administration expenses, including court costs, legal fees, and personal representative fees. Additionally, funeral expenses, taxes, and claims filed by creditors may be paid out of estate assets.
Disclaimer
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
At Ingraham Pautienus & Tidwell, PLLC, we represent people throughout Middle Tennessee, including clients in Nashville, Brentwood, Franklin, Murfreesboro, Gallatin, Clarksville, Davidson County, Williamson County, Rutherford County, Robertson County, Sumner County, Wilson County, Putnam County, Maury County, Coffee County, and Cheatham County.
