September 14, 2022
Carpenter & Lewis PLLC is a firm that wants to bring their clients the best we have to offer, so that their needs are met. We don’t try to split our focus from estate planning and transactional law, that way you know we’re focused on you and your needs.
We focus on:
- Drafting wills.
- Drafting trusts.
- Settling probate estates.
- Settling probate trusts.
- Forming LLCs or other entities.
- Small business law.
An Overview of Probate Law in Tennessee
Probate is a court supervised process that can be required after someone dies. Probate gives somebody, typically the closest surviving family member, legal authority to gather the decedent’s assets, pay their debts and taxes, and transfer those assets to the people that were identified to inherit from the estate of the decedent according to the will or a court order, if there was no will.
Probate can take six months to a year, though this can go on longer if there is a fight involving the beneficiaries of the will. This is rare, but it can happen. Having a good probate lawyer in Knoxville, TN that is focused on the probate process itself can help you better understand why such fights may occur.
Not every asset needs to go through probate, just assets that the deceased person owned in their own name need to go through probate. Other assets pass to the new owners without oversight from the probate court. Assets going through probate court are called part of the “probate estate”.
Some common examples of assets that aren’t part of the probate estate:
- Property that is held in joint tenancy, such as a bank account, a home, or a car. It does not go through probate as it has a second owner, and the surviving owner retains the property outright.
- Property held in tenancy by the entirety, which means the person owned the real estate with their spouse, they’ll avoid probate court because ownership goes to the surviving spouse.
- Payable-on-death bank accounts, or POD, is a bank account that goes directly to the beneficiary of the account when the account holder dies.
- Assets that are registered in a transfer-on-death form, this is a form that Tennessee residents can feel out and anything registered on this form are transferred directly to the beneficiary identified on the form without probate.
- Life insurance proceeds from life insurance policies specify a beneficiary, so they do not require a probate court.
- Retirement funds do not go through probate because the account holder has designated a beneficiary of those proceeds.
- Living trust assets are held in the name of a living trustee, so they do not go through probate.
Learn More About Tennessee Probate
After a person passes away, what happens to their estate and their assets is not always clear. If they did not create a will or other type of estate plan, it may seem like their estate simply hangs in limbo. This is not the case, however, and each state, like Tennessee, has its own probate process when a person passes away without an estate plan. When a person passes away and they have a will, you can also expect their estate to go through probate, and the court will do its best to ensure the decedent’s last wishes are honored.
What really happens after a person dies and they do not have an estate plan?
Things can become tricky when a person passes away without a will. Although their estate goes through probate and a court makes decisions on it, the people the decedent loved and cared for the most may have no more a right to get something than another family member does. Dying without a will is known as dying intestate, and when this happens, their property will most likely pass on to their closest family member. This is often going to be their spouse or their children, including adopted children. Similarly, if the decedent was unmarried and does not have children, a court will move on to passing property to siblings and parents. This process continues until the court is unable to find other relatives.
What is required to make a will legal?
For a will to be legal in the state of Tennessee, you must:
- Be 18 years or older when you are making the will
- Be of sound mind
- Have two witnesses to sign it in the presence of the testator and each other
In some instances, it will also be valid for a person to write a will by hand (also known as a holographic will) and it will be valid to have an oral will. It will be up to the state to accept either type of will.
Is it possible to skip the probate process altogether?
It is possible, and when you are considering your estate planning options, your probate lawyer in Knoxville, Tennessee may recommend you create a revocable living trust instead of a will. A revocable living trust will be able to encompass all of your estate planning needs and will thus be able to avoid the probate process.
What, exactly, is probate?
Probate is the legal process where the estate of the person who died is actually settled. As a general rule, the more property the decedent had at the time of their death the more complex the probate process is likely to be. The rules often seem arcane and confusing to the lay person which is exactly why you may want an expert probate lawyer like Carpenter & Lewis PLLC. This is often true even though many courts in the state do not actually require you to have a probate attorney.
Reasons to have a probate lawyer
There are multiple reasons a probate lawyer is worth considering including:
- Most of our clients tell us the probate court tends to assume you know what you’re doing and is reluctant to answer your questions. Taking on probate is assuming a large responsibility that is much more complicated than most people recognize.
- If the family is likely to argue about how the estate is to be handled, having a probate attorney will make your life much easier.
- Wills often use language that, from a court’s point of view, is unclear. A probate attorney may be able to help that issue get sorted out.
- Estates with a large value often benefit from legal help.
- If the estate involves the transfer of a business, a lawyer who knows the ropes is likely to be more than helpful.
- When the estate results in a dispute with a creditor, having an experienced attorney on your side will often be able to help you get it sorted out quickly. If the estate can’t pay legitimate debts, an attorney representing you is likely to result in a truly fair settlement.
- Local services, taxes and federal taxes may be involved and the right probate attorney can help you understand what is needed.
- Real estate transfers, especially between counties and/or states may require a probate attorney.
Choosing a probate lawyer
The death of a loved one is an emotional time. This is exactly why you want a probate attorney that has deep experience handling cases like yours. They can protect your rights and interest and provide you with the balanced information you need to make good decisions.
Steve Carpenter, founder of Carpenter & Lewis PLLC, has been helping people with probate for over three decades. He states his purpose, saying, “I help families and businesses protect their assets to pass a legacy to the next generation.”
What to Look for in a Probate Lawyer to Write Your Will
It can be very daunting to start looking into the details of how to make your will, especially if you are doing it on your own and aren’t familiar with how the legal system works. However, it’s important to understand that a will is the most important document in your life, and will have a profound effect on all of those who are important to you. If you are thinking about writing your own will, here are five things to look for in a probate lawyer to write your will so that you can make sure everything goes as smoothly as possible after you pass away.
When you’re looking for a probate lawyer to write your will, you’ll want to find someone with experience. After all, this is an important document that will determine how your assets are distributed after you die. The last thing you want is for there to be any mistakes. Look for a lawyer who has been practicing law for at least five years.
Checking a lawyer’s reputation is one of the most important things you can do when looking for legal representation. You want to be sure that the lawyer you hire is someone who is respected by their peers and has a good track record. There are a few ways to go about checking a lawyer’s reputation. You can start by asking people you know if they have any recommendations. You can also look up reviews online. Finally, you can contact your local bar association to get more information.
One of the most important things to look for when choosing a probate lawyer is transparency. You want a lawyer who is upfront about their fees and the process. Ask around for referrals and read online reviews. Once you’ve narrowed down your choices, ask each lawyer for an initial consultation. This is your chance to get a feel for the person and see if they’re someone you can trust.
Your probate lawyer should give you a flat fee for their services. This means that you will not be charged by the hour, and will know exactly how much the service will cost upfront. Additionally, your probate lawyer should be able to give you an estimate of how long the process will take.
The average cost of a probate lawyer includes a wide range depending on the complexity of your estate. It is important to note that if your estate is worth more than $1 million, you may need to hire a team of lawyers which will increase your costs.
A good probate lawyer should be committed to helping you create the best possible will for your situation. They should take the time to understand your unique circumstances and explain the options available to you. Plus, they should be available to answer any questions you have along the way. If something happens that forces them to change their availability or schedule, they should communicate with you about it as soon as possible.
If you are looking for a probate lawyer to write a will for you, contact one at our firm today!
File Petition to Start Probate
If you are handling the final wishes of a decedent’s estate, then you will need to file certain paperwork in the county where the person had lived at the time of their death. As your probate lawyer Knoxville, TN families trust from Barry P. Goldberg can review, the paperwork will require you to be officially named as a legal executor who represents the estate. Within your petition, you’ll have to file a will, if a valid one exists, and the certificate of death. The court will schedule a day and time to approve the role of executor, or hear objections from others, and then the probate case will officially have begun. You will then be able to perform executor tasks and act on behalf of the deceased’s estate.
After filing a petition to start probate, you’ll have to give notice to beneficiaries, creditors, and heirs about the person’s passing. This is required by the court, and in some states, you may even have to publish a notice in the local newspaper. After that is done, you will move on to inventorying the assets. Gather, inventory, and get appraisals for all assets that may be subject to probate and then present them to the court, including personal effects, stocks and bonds, real estate, bank accounts, retirement accounts, and more.
Handle Debts and Bills
By notifying creditors and other parties about the deceased’s estate, you may receive claims from creditors about debts. You’ll have to make sure that these requests are legitimate before paying them from the estate. Collect money that is owed to the estates, such as outstanding rent payments and paychecks. Review unpaid bills and other debts, and decide if they should be paid. You’ll have to make sure that the estate assets are able to cover debts before you pay them, as the state will prioritize the claims of creditors.
Distribute Remaining Assets
Once all of the above is finished, then what remains in the estate will be distributed to beneficiaries and heirs as instructed. Beneficiaries may have questions about the estate and other concerns, in which you will have to communicate with them to a reasonable degree. As your Knoxville probate lawyer can guide you through, part of being an executor of an estate means that you will have to keep a financial record of all the transactions that have been done, and you may be required to share these details with beneficiaries.
Close the Estate
Keep in mind that as the executor of someone’s assets who recently passed away, you will always have to make choices that are in the best interest of the deceased. If you are caught making decisions or using money in a way that is for your personal benefit, beneficiaries may report you and you may be removed from your role, along with other potential repercussions. After all assets have been distributed accordingly, you will send these receipts and records to the court and request for the estate to be closed, in which you will be released from the role of executor. If you need help as an executor of someone’s estate, don’t hesitate to contact our Knoxville lawyer probate team today for support.
Schedule a no-cost consultation
Carpenter & Lewis PLLC are pleased to offer you a no-cost consultation. This will allow you to get a ‘feel’ for the firm, meet with some of their staff and get your initial questions answered. Your consultation will be treated with confidentiality and you’ll recognize you’ve been talking with people who understand your situation.
Talk to your probate lawyer in Knoxville, TN today if you have questions about what goes through probate court. Carpenter & Lewis PLLC has four lawyers, with varying educations and memberships. You can find a probate lawyer Knoxville, TN that you like that suits you and your case. Every lawyer has a different background, and you might connect with a specific lawyer in the firm because of their background, and that is okay.