Will and Probate

Am I required to have an attorney in Probate Court?

In general, a person has the right to represent oneself in legal proceedings. However, the courts will not allow a person to represent oneself in his or her capacity as a fiduciary, such as executor, administrator, conservator, or guardian. The reason for this distinction is that, in those capacities, there are other people involved, such as heirs, beneficiaries under a will, or creditors. While serving as a fiduciary, the person is representing all those other persons, and not just representing oneself. He or she must therefore have an attorney.

Do I have to probate a will?

No. However, if a decedent owned assets in his/her individual name it is doubtful that they can be transferred without some type of probate proceeding.

Do all assets pass under a will and/or through probate?

No. Some assets pass by beneficiary designation and are not subject to your will or probate.  Common examples include life insurance, retirement plans, trusts, or payable on death bank accounts.  Additionally, assets that are owned jointly with right of survivorship pass to the joint owner, regardless of what your will says.

How long do I have to probate a will?

There is no set time required by law. Once probated the will relates back to date of death.

What is the average cost to probate a will?

There are different types of costs. There are court costs. Unless there are many claims and other litigation the total court costs should be approximately $300.00. There may be other fees that are dependent on the size and nature of assets. These fees are typically incurred for legal proceedings, for appraisals of real and personal property, and for the preparation of tax returns. No two estates are alike and it is very difficult, if not impossible, to determine what is average. There are also costs incurred in actually transferring assets. The probate process gives someone the right to transfer assets. There are additional costs involved in order to exercise this right.  A current list of probate fees can be obtained by contacting the Madison County Probate Court Clerk’s office at 731-988-3025.

Who inherits my property if I do not have a will?

The persons entitled to inherit if you do not have a will are listed in Tennessee Code Annotated Section 31-2-104, if you are a Tennessee resident upon your death.  The deceased’s spouse and descendants (children, grandchildren, etc.) inherit first, provided that a spouse inherits a minimum of 1/3 of the assets.  If there is no living spouse or descendants, then the deceased’s parents inherit equally.  If the parents are not living, then the deceased’s siblings inherit.  If some siblings are living and some are deceased, then the share that would have passed to the deceased sibling will pass to descendants of the deceased sibling. If there are no living siblings, then the assets pass 1/2 to the maternal and 1/2 to the paternal grandparents.  If either set of grandparents is not living, their half passes to their descendants.

What is the maximum amount that I may own at death and not pay “death taxes?”

First, there is no tax due if all of your assets are passing to your spouse and he/she is a U.S. citizen.  If your assets are passing to anyone else, Tennessee has an Inheritance tax on anything you own at death that exceeds $1,000,000.  The tax rate starts at 5.5% and gradually increases to 9.5%.  There is also a Federal Estate Tax, with the same rules as above regarding assets passing to U.S. citizen spouses.  The U.S. government taxes any assets greater than the federal exemption amount.  The federal exemption amount is $2,000,000 for deaths in 2008 and $3,500,000 for deaths in 2009.  For 2010 only, there is currently scheduled to be no federal estate tax.  In 2011 and years thereafter the federal exemption reverts back to $1,000,000, unless Congress and the President pass new legislation before then.

Can my parents give away all of their assets and then qualify for Medicaid so it will pay for nursing home costs?

No, not if your parents apply for Medicaid within 5 years of giving away assets.  This “lookback period” was previously 3 years but is now 5 years.

How old does one have to be to make a will?

18 years old.

How many witnesses are required for a will to be valid?

If the will is typewritten, or written by someone other than the person signing the will (a testator), then the will must be witnessed by two disinterested persons (i.e. not entitled to inherit any assets under your will) who must actually see the person sign the will.  Then, the two witnesses must sign the will in the presence of the testator and in the presence of each other.  All signatures must be notarized.

Is a handwritten will valid in Tennessee?

Yes, as long as the will is written entirely in the person’s handwriting and bears his/her true and genuine signature.

Does a handwritten will need to be witnessed or notarized?

No, not as long as the will is entirely in the person’s handwriting and bears his/her true and genuine signature. (However, the will must be proven in court by two witnesses who were familiar with the handwriting of the testator.)

What happens if I die without a will?

Your assets will pass as directed by the laws of the State of Tennessee under the “intestate succession” laws set forth above in the section entitled “Who inherits my property if I do not have a will”.

Is a will executed outside of the State of Tennessee valid in Tennessee?

Yes, if the will was executed according to the laws of another state, it is valid in Tennessee.

DISCLAIMER: The above information available through www.jacksonmadisonbar.org is basic legal information and is neither intended as legal advice, nor a substitute for legal advice.  No attorney-client relationship is created herein.  The content on www.jacksonmadisonbar.org is provided by the Jackson-Madison County Bar Association as a public service and for general information only. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you visit our (Need a Lawyer – Estate Planning Will & Trust, Estate Planning Probate, Estate Planning Taxation, Estate Planning Estate Contests section or find a lawyer in the phone book.  The topics covered through www.jacksonmadisonbar.org will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.

A special thanks to the Memphis Bar Association for its contributions and assistance to the Jackson-Madison County Bar Association in making available this legal information.  Portions of the foregoing content have been reprinted with the permission of the Memphis Bar Association.  www.memphisbar.org.