Nashville Estate Planning and Probate Attorney

The length of the probate process varies from case to case. Once an initial hearing date is set, the parties to the probate case will appear in court, at which time the judge will appoint an executor or administrator and open the estate for probate. Once the estate is opened there is a four-month creditor period. During this time, the estate must remain open and all assets in the estate are withheld from disbursement to the beneficiaries in order to allow any creditors to make a claim against the estate. Upon the expiration of the four-month creditor period, the executor can typically disburse the estate to beneficiaries and close the estate. Depending on the availability of a court date, the existence of none or many creditors, and the complexity of handling the assets of the estate, a probate case can take a minimum of five months to over a year or more to settle.

Determining whether or not to file a probate case is often dependent on if assets of the deceased individual are available in the absence of a court order appointing an executor. Some assets, such as real property, can pass outside of probate. However, in certain instances, such as when real property is willed to an individual who is not a direct family member (spouse or child) or to the exclusion of other heirs at law, the probate process is necessary to transfer title to real property. Further, assets such as bank accounts, retirement accounts, and CDs can typically only be accessed if the bank or financial institution has evidence of a court appointed executor, demonstrating someone has the authority to access a deceased person’s account.

When a person dies without a will, they are said to die “intestate.” When a person dies intestate, TN law takes over and identifies those who are considered the heirs at law. In TN, upon a person’s intestate death, assets of the decedent are immediately vested in their heirs as defined by TN Code Ann. 31-2-104. Even if a person dies intestate, the decedent’s estate can still be probated so that the heirs at law can access assets of the estate. 

A will is a document that identifies an executor of your estate and also identifies who you wish to leave your personal assets after your death. A will is utilized after a person passes away for the deceased person’s family to handle the assets the person left behind and determine who was appointed executor of the estate to handle the disbursement of assets. A trust is a legal document utilized to hold assets. For example, people often hire an attorney to create a trust for which will then hold real property. The attorney will create a trust and then prepare a deed, deeding the property title to the trust entity as the new owner. A trust will name the person that created the trust, the trustee or manager of the trust, and the trust beneficiary.  If an asset is held in a trust, the trustee can disburse the assets in trust to the beneficiary according to the language of the trust document.

Trusts are signed and notarized by the creators of the trust (the trustor’s) and the trustee.

A durable power of attorney remains in effect if the principal becomes incapacitated, whereas a general power of attorney would not be in effect if the principal was incapacitated.

Your estate plans should be updated as major events happen in your life such as marriages, divorce, deaths, and births.

It is best for everyone to setup their affairs so that their wishes can be clearly determined after their death. It is very important when preparing your estate planning to carefully consider and select the person tasked with acting as the executor of your estate, or in any other fiduciary capacity. 

An estate attorney can assist you in preparing your estate documents in accordance with state law. An attorney’s expertise is always recommended to avoid problems related to improper preparation of estate materials.