PROBATE / TRUST ADMINISTRATION

Has a loved one recently passed away and you aren’t sure if there is something you need to do to handle his or her affairs? Or maybe a loved one passed away many years ago and you want to sell real estate which he or she owned at the time or his or her death? When someone dies (the “decedent”), the decedent’s loved ones typically are required to administer the decedent’s estate.

For instance, when someone dies, whether they have a Will (“testate”) or not (“intestate”), or have a Revocable Living Trust, his or her estate is in many cases required to be “probated,” or a trust administration is required (these processes are collectively referred to as “estate administration”). For example, if someone died with real property in his or her name, probate is required to clear title to this property to allow that person’s heirs to eventually sell the property. The process of estate administration involves gathering the decedent’s assets, paying the decedent’s creditors, and then distributing the decedent’s assets in accordance with his or her Will or Trust, if there is one, or pursuant to the intestacy laws of the state of Tennessee. 

The process of probate usually begins with filing a petition to have a Personal Representative appointed to administer the estate. The Personal Representative may be a relative or friend, if the decedent died without a Will, or the person named in the Will as the Personal Representative (i.e. Executor) of the estate. The Personal Representative will petition the Probate Court to open the probate estate, and documentation will be issued to the Personal Representative to evidence his or her authority to administer the decedent’s estate. The Personal Representative has many specific duties, including but not limited to preserving the assets of the decedent’s estate, notifying TennCare of the decedent’s death (even if the decedent was not a recipient of TennCare when he or she died), paying all creditors, and filing an estate tax return for the decedent’s estate (depending on the size of the estate).

If a Revocable Living Trust is involved, the Trustee may not be required to open a probate estate, but there are other specific duties, such as notifying TennCare of the decedent’s death, paying all creditors, and filing an inheritance tax return for the decedent’s estate, which are required of the Trustee. 

Ultimately, regardless of whether there is a Will or a Revocable Living Trust, or even if the decedent died intestate, the Personal Representative or Trustee will be responsible for ensuring that all creditors are paid and the decedent’s remaining assets are distributed according to the decedent’s wishes.

The estate administration process can be very difficult and confusing, and in most cases an attorney with experience in this area is hired to assist and advise the Personal Representative or Trustee during the estate administration process. For instance, if this process is not handled properly, the Personal Representative may be personally liable for his or her failure to follow the law.

We routinely represent Personal Representatives and Trustees (i.e. fiduciaries) in the administration of estates. Our job is to advise the fiduciary of his or her duties according to the law and to take care of all court filings and most, if not all, court appearances for the fiduciary. We assist in notifying the appropriate authorities of the decedent’s death, in determining the decedent’s heirs, in contesting claims filed in the estate, and in determining the appropriate shares to distribute to the beneficiaries of the estate/trust. Our goal is to make this process as easy as possible for you.