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| - Wills & Decedent's Estates in Probate Court |
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Wills
& Decedent's Estates
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| I. INTRODUCTION When a person dies, he leaves his or her possessions. This includes land, or real property, and personal possessions such as money, bank accounts, furniture, cars, stocks, and bonds, which are known as personal property. A person can designate to whom he wants his or her possessions to go. This is done by executing a Last Will and Testament, or a "Will." If a person does not leave a Last Will and Testament, then his or her property is vested in his heirs according to statutes passed by the legislature. This is referred to as the Laws of Descent and Distribution. An estate must be opened in the Probate Court in order to give effect to a Last Will and Testament. This is accomplished by the filing of a petition with the Court. An Estate can be opened either with a Will, or without a Will. A Personal Representative is appointed- an Executor for a Will; an Administrator if there is no Will. If there is a Will, both real property (land) and personal property can be distributed by the Probate Court and the personal representative. If there is no Will, the Probate Court distributes the personal property only. Real Property if there is no Will vests directly in the heirs whom the Legislature has designated as the recipients of the property. Where there is a wife and 2 or more children, the wife will be vested with 1/3 and the children will be vested equally with the balance. The term children does not include stepchildren, but does include adopted children. Where there is a wife and 1 child, the wife receives 50% and the child receives 50% of the interest in the real property. Following the appointment of the personal representative, (Executor, Executrix, Administrator & Administratrix) the Court will direct the clerk of the Court to issue "Letters" which reflect this appointment and which will provide evidence to third parties of the authority to act on behalf of the estate. Call 901-757-5557 for a free appointment to discuss your situation. II.NOTICE TO CREDITORS A published or posted notice to creditors of the qualification of the personal representative will be processed by the Clerk of the Court. In addition, it is the duty of the personal representative to mail or deliver by other means a copy of the published or posted notice to all creditors of the decedent of whom the representative has actual knowledge or who are reasonably ascertainable by the representative, at such creditors' last know addresses. Such notice shall not be required where a creditor has already filed a claim against the estate, has been paid or has issued a release of all claims against the estate. The representative must file a separate affidavit or the petition to close the estate must contain language stating that the personal representative has complied with this requirement at the time the Court is requested to close the estate. III. INVENTORY Within sixty days after entering on the administration of an estate, the personal representative is required to make a complete and accurate inventory of the probate estate of the deceased and file same with the Clerk of the Court. The personal representative must verify the inventory by oath before the Clerk, a notary public or before any person authorized by law to administer oaths. If the Will of the deceased excuses the
requirement for making and filing an inventory of the estate, or when
excused by all of the residuary distributees or legatees, no inventory
shall be required of a solvent estate, unless demanded by any residuary
distributee or legatee of the estate.
Within sixty days after entering on the administration, the personal representative shall notify each legatee or devisee under the will that such person or entity is a beneficiary in the following manner. By first class mail or personal delivery as follows: a) a complete copy of the will to those beneficiaries sharing in the residue of the estate; b) a copy of the paragraph(s) of the will containing such bequests to those beneficiaries only receiving bequests; c) a copy of the letters of administration to each residuary distributee of an interstate estate; d) a complete copy of the will to a trustee, if the residue or a portion thereof is distributable to a trustee for the benefit of others. The trustee shall then have the obligation to send copies thereof to the trust beneficiaries. Within the sixty day period, the personal
representative is required to file with the Clerk of the Court, an
affidavit that the required copies have been mailed or delivered to
the beneficiaries or distributees and an explanation of efforts to
identify and locate beneficiaries or distributees, if any, to whom
copies have not yet been sent.
Within fifteen months from the date of the qualification as the personal representative you are required to make an accounting with the Clerk of the Court. After the first accounting and until the estate is fully administered, the personal representative is required to make further accountings annually from the date of the first accounting. Such accountings shall state all receipts, disbursements and distributions of principal and income for the accounting period and the remaining assets held in the estate and shall be verified by oath before the Clerk, a notary public or before any person authorized by law to administer oaths. Detailed accountings of solvent estates
may be waived if all of the distributees of the residue file with
the Clerk of the Court waivers excusing the personal representative
from filing all Court accountings.
The Executor or Administrator is responsible for marshalling the assets (rounding up all of the property) and distributing the property to the beneficiaries in accordance with the instructions in the decedent's Will, or if there is no Will, according to the statutes of the state of Tennessee for Descent and Distribution. This includes the payment of debts to creditors who have filed claims. If there is not enough money in the estate, there may be an insolvent estate. This is a circumstance which should be discussed with the attorney. It results in less distribution to beneficiaries and creditors. If there is no Will, an affidavit of Heirship must be signed and recorded with the Register's Office of the county where the real property is located. If the distribution goes to a Trust pursuant
to a Will's direction, the Executor pays the funds and conveys the
property to the designated Trust.
Similar procedures are utilized for Guardianships and Conservatorships. Please schedule an appointment to consult with the attorneys for more detailed information. Call 901-757-5557 for a free appointment to discuss your situation. |
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