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.
for a free appointment to discuss your situation.
II.NOTICE TO CREDITORS
published or posted notice to creditors of the qualification of
the personal representative will be processed by the Clerk of the
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.
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.
IV. NOTICE TO BENEFICIARIES
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
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.
V. ACCOUNTS & SETTLEMENTS
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
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.
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.
THESE INSTRUCTIONS ARE NOT INTENDED TO ANSWER ALL OF YOU QUESTIONS
TO ADMINISTERING AN ESTATE. IF YOU HAVE QUESTIONS, YOU SHOULD CONSULT
PROMPTLY WITH THE ATTORNEY REPRESENTING THE ESTATE.
Similar procedures are utilized for Guardianships
and Conservatorships. Please schedule an appointment to consult
with the attorneys for more detailed information.
for a free appointment to discuss your situation.
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