Probate / Estate Administration

Probate/Estate Administration

When a loved one passes away, dealing with the legal steps that need to be taken to settle your loved one's affairs may seem overwhelming. The Law Office of Virginia W. Griffee can help you through the process and provide a roadmap specific to your situation to alleviate your stress as you grieve your loss. Here are some general guidelines:  

What is Probate/Estate Administration?

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration, which involves the management and distribution of the assets of the deceased. The process is called a probate administration when there is a valid Will.  If your loved one dies without a valid Will, it is called dying intestate and the administrative process in Probate Court is called estate administration. The person named in a valid Will as the Executor or Executrix (both also called Personal Representative) is responsible for the administration of the estate under court supervision. For intestate estates, the Probate Court appoints an Administrator to administer the estate under its supervision. If your loved one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration will be necessary. In this case, the successor Trustee administers the distribution of the deceased's assets without any involvement by the Probate Court. Whether you are acting as the Executor, Administrator, or Trustee, The Law Office of Virginia W. Griffee can help you avoid pitfalls by advising and assisting you with the process and your duties. 

What are the Responsibilities of an Executor or Administrator?

Each probate estate is unique, but the responsibilities of an Executor or Administrator in a Probate Court administration, include:

• Filing a petition to open the estate in the proper probate court
• Notice to the heirs named under the Will or, if no Will exists,  to the statutory heirs under Tennessee law
• Petition to appoint an Executor (in the case of a Will) or Administrator (for an intestate estate where there is no valid Will) for the estate
• Identification and notification of potential creditors
• Publication of legally required notices
• Inventory and appraisal of estate assets by Executor or Administrator
• Payment of estate debt to rightful creditors
• Sale of estate assets, if necessary
• Filing and payment of, as applicable, estate taxes 
• Final distribution of assets to heirs

How Much does Probate Cost?  How Long Does it Take?

The cost and duration of probate can vary substantially depending on a number of factors, such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.  Will contests or other disputes between beneficiaries or with alleged creditors over the debts of the estate can add significant cost and delay.  Common expenses of an estate include executor fees, attorney fees, accounting fees, court fees, appraisal costs, and surety bonds. Generally, the administrative process can be handled most cost effectively when there is a valid Will accepted as such by both the Probate Court and the heirs, and there are no estate/inheritance taxes to be paid. Most estates are settled in such manner at a reasonable cost, which is paid from the estate assets. Where there are no disputes among the beneficiaries to be resolved before probate can be finalized and no inheritance/estate taxes are due, the probate process generally can be finalized within 4 to 18 months. Of course, the probate process can take longer for larger and more complex estates, for estates filing an estate tax return, for estates subject to Will contests or for those estates embroiled in other disputes or ongoing litigation.

What Happens if Someone Objects to the Will?

An objection to a Will, also known as a “Will contest,” can occur during the probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example, children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Does Probate Administer All Property of the Deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

Certain types of assets, called “non-probate assets” do not go through probate.  These include:

• Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
• Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries 
• Life insurance policies where there are designated beneficiaries.
• Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
• Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

Do I Get Paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased's estate.  In addition, you may be entitled to fees, which vary from location to location and on the size of the probate estate.  The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.