Elder Law Attorneys Help Get a Grip on Probate

When a person dies, it falls to someone – often a relative or other loved one named in the decedent’s will – to administer the estate. Estate administration is the act of collecting the decedent’s assets and distributing them to the proper recipients, including creditors and beneficiaries of a will or the decedent’s heirs at law. While the person administering the estate is not required to retain legal counsel, he or she is wise to consult a qualified Elder Law Attorney before attempting to administer an estate for three reasons. First, an Elder Law Attorney will analyze the decedent’s assets and debts and advise the administrator as to whether a full probate administration, a small estate administration, or use of a “probate alternative” is appropriate. Second, an Elder Law Attorney will advise the would-be administrator as to whether or not he or she has the authority to administer the estate and thus manage the decedent’s property. And finally, an Elder Law Attorney will advise the administrator as to what Court has jurisdiction over the estate and where all documents need to be filed. Armed with this advice and information, the administrator of the estate will be able to fulfill his or her duties with minimum hassle and may save time and money along the way.

Is Probate Necessary? In some cases, such as when the decedent’s property was owned jointly with another person or the property automatically passed to another individual by beneficiary designation, the estate can be handled privately without court involvement. Also, some property can be transferred without court involvement by invoking probate alternatives. In Tennessee, Probate alternatives are governed by parts of the statutory code that allow specific types of property to be transferred to the proper recipient after certain procedures are followed. Some examples of property commonly transferred via a probate alternative, but only when all other statutory requirements are met, include real property (land), funds in a bank account totaling $50,000 or less, and the contents of a safe deposit box.

An estate must be administered in court when the property is not exempt from probate administration or if there are debts that need to be resolved. Probate administration often entails consolidating cash into an estate bank account, filing life insurance claims, collecting and distributing tangible personal property, notifying and paying creditors, preparing tax returns and paying tax liabilities or requesting tax refunds, filing a TennCare release (required for all Tennessee decedents 55 years or older), and making final distributions to beneficiaries. If the decedent owned property in another state, that property must be distributed according to the laws of that state and cannot be probated in Tennessee. The person administering the estate must file numerous documents and perform certain tasks within various periods of time as required by Tennessee Statutory Code. Clerks of the court cannot provide estate administrators with specific instructions because they are prohibited from giving legal advice, so administrators must turn to other legal professionals for instructions about how to file probate.

An appealing alternative to regular estate proceedings is small estate administration. The Small Estate Act allows for the transfer of the decedent’s property without opening a regular estate if the personal property of a decedent is valued at less than $50,000. Small estate administration allows a person, the “affiant,” to file an affidavit with the court which states basic information about the estate and directs those persons and entities to deliver the decedent’s property to the affiant. The affiant pays the debts of the estate and distributes the remaining property to the proper recipients. Small estate proceedings are far more time- and cost-effective than regular estate proceedings, which can drag on for several months. An Elder Law Attorney can provide advice about whether or not a particular case is eligible for small estate administration.

Who May File to Administer an Estate? When a person dies with a will, also known as testate, the person who handles the estate is referred to as the executor or the personal representative. This person is commonly named in the Last Will and Testament. If a person dies intestate, meaning without a will, the court will name an administrator. In Tennessee, the spouse is given first preference to serve. If the spouse is unwilling, the next of kin may seek appointment. If there is more than one next of kin petitioning to serve, the court will decide who shall serve. If no next of kin is willing to serve, a creditor of the estate may serve on behalf of all of the creditors of the estate. It is important that a person receives authority from the court before taking action in regard to the decedent’s property because he or she could open him or herself up to personal liability.

Once the administrator is named by the court, he or she is responsible for carefully following the state’s rules controlling administration of the estate. It is necessary to oversee meticulous accounting, notify creditors, and keep track of filing deadlines throughout the process. Often estate administrators seek legal guidance from a qualified Elder Law Attorney who is familiar with the court process and can bear the burden of discerning what rules apply to the case, what information is needed, and when it is necessary to complete certain tasks.

What Court has Jurisdiction over the Estate? According to Tennessee law, the probate court of the county where the decedent lived at the time of death or the county in which the decedent owned property may grant letters of administration or letters testamentary upon the decedent’s estate. This means that in cases where the decedent lived in one county but owned property in another it may not be immediately apparent which court will handle the probate proceedings. Probate may also be required in another state if the decedent owned real estate outside of Tennessee. If out-of-state probate proceedings are required, the administrator should be aware that these proceedings will be governed by the rules of that state. Seeking help from a qualified Elder Law Attorney is advised to help navigate the additional complexity of such cases.

Conslusion. Administering an estate can be a daunting process, and for many people it is an additional burden at a time when they are already emotionally drained due to the loss of a loved one. Hiring a qualified legal professional to assist with understanding the requirements of the law can be of great comfort as well as financial benefit, as it may help to avoid mistakes for which the administrator can be held liable. Elder Law of East Tennessee is committed to helping our clients get through the process as quickly as possible while minimizing the burden on the administrator of the estate.