Elder Law | What is Probate Administration | Elder Law Practice of Monica Franklin, CELA



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Probate Administration
What is probate?
Probate is a court process designed to distribute a decedent’s assets and clear title to real estate. It is not always required. For example, if you have a revocable living trust, and all of your assets are properly transferred to the trust, probate is usually not required.

My mother died, do I have to probate her will?
It depends on how your mother’s assets were titled. If her assets were held jointly with right of survivorship, there is generally no reason to probate. However, if she owned assets in her name alone, probate will probably be required.

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.

If I die without a Will, who determines how my assets will be distributed?
When a person dies without a Will, it is called dying intestate. There are Tennessee statutes which direct how your assets pass under intestacy, but the statutes do not automatically direct that all of your assets go to the State of Tennessee. When a person dies intestate, after the payment of debts and other expenses of the estate, a person's property passes to their heirs at law. Under Tennessee Code Annotated Section 31-2-104, if the decedent has a spouse and no children then the entire estate passes to the surviving spouse. If the decedent has a spouse and living children, then the surviving spouse receives either one-third, or a child's share, whichever is greater and the remainder is divided among the children. If there is no surviving spouse but surviving children then the entire estate passes to the children. The statutes go further and direct how assets are to pass if there are no children or a surviving spouse. Only if there are no surviving heirs-at-law under the statutes would the property ever pass (escheat) to the State of Tennessee.
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