Probate is designed to deter fraud after an individual’s death. It is a method of “freezing” the estate until a judge makes a determination on the validity of the Will, that the entire property of the estate has been identified, that all the relevant individuals have been notified, that the taxes have been paid, and that the creditors have been paid. Once these matters have been completed, the court orders the distribution of the property and the estate is closed.
Q: Do I Have to File for Probate?
A: Not every estate is required to go through probate. If an estate is categorized below a certain threshold, it is referred to as a small estate and may be settled without court supervision.
Also, not all assets of a deceased individual are subject to probate. Certain types of assets automatically transfer at the death of the owner, without the need for probate. Some of the common types of assets that transfer without probate include:
- Joint tenancyassets – If one joint tenant passes away, the surviving joint tenant automatically becomes the owner of the asset, with no court order required. This is referred to as the “right of survivorship.”
- Payable on death or transfer on death accounts – Brokerage and bank accounts may have designated beneficiaries. The owner of the account has the right to designate prior to his or her death who should receive the assets of the account at that time.
- Beneficiary designations – Life insurance policies or retirement accounts also have named beneficiaries. These beneficiaries are entitled to the proceeds of the policy or assets of the account upon the death of the policy or account owner.
- Tenancy by the entirety or community property with right of survivorship – These types of property ownership operate in similar fashion to joint tenancy. At the death of the other tenant, the survivor owns the entire property. Only married couples may receive this survivor benefit.
In addition, if the deceased individual created a Living Trust that held his or her most significant assets, such an estate will not pass through the probate process, unless the assets remaining outside of the trust amount to a value greater than the small estate limit in Tennessee. The Living Trust was created to avoid the need for probate after the Grantor of the trust passed away.
Tennessee estates that surpass the small estate’s threshold and have a Will (but not a Living Trust), or do not have a Will, require probate before the estate may be transferred to the heirs or beneficiaries of the decedent.
At Wagner & Wagner, our Chattanooga probate attorneys are able to work closely with your personal representative to carry out the directions of your loved one in his or her Will. We can also help you in situations in which your loved one did not have a Will. For dependable guidance in matters of Will and probate, give us a call today at 423-756-7923 or use our contact form. Our services extend to families and individuals in Chattanooga, Cleveland, and the entire state of Tennessee.
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