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Probate

If you are here to learn about Tennessee or New York probate after the passing of a loved one, we first want to say that we are very sorry for your loss.  We hope that the information you find on this page will simplify any legal and administrative stress you might otherwise face during such a difficult time.

 

With that said, probate is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries.  Probate is also necessary to:

  • Prove the validity of the will

  • Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)

  • Inventory and appraise the estate property

  • Pay any debts or taxes (including estate taxes)

  • Distribute the property as direct by the will—or by the state law if there is no will

 

In Tennessee, if someone has more than $50,000 in total assets, their estate will most likely have to be probated. In New York, estates valued over $30,000 must pass through probate. Estates valued under those respective amounts can typically pass through a simpler probate procedure for small estates.

What's so bad about probate . . . an what should I do next? 

Many people want their estates (and families) to avoid probate.  It tends to be very expensive, it’s time-consuming, and it’s a public process, not to mention it can often be stressful and overwhelming to navigate while also grieving a loss.

The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and cost-effectively, as possible.

How is the probate process started? 

Although any beneficiary or creditor can initiate probate, normally the person named in the will as the executor starts the process by filing the original will with the court and filing a petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the petition.

How is the executor chosen

If the decedent had a will, the person named in the will as the executor will serve, if eligible. If that person is unable or unwilling to serve as executor, or if there is no will, then any interested family member or person can petition the court to be the administrator of the estate.

How is the executor paid?

Both Tennessee and New York law provide that the executor of an estate gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.

Could I be held personally liable for making a mistake as an executor?

Being an executor comes with responsibility. There are rules, deadlines and procedures that an executor must follow in filing papers with the court and handling other matters throughout the probate process. If an executor violates any of these rules or misses important deadlines, he or she could be held personally liable for losses to the estate.

My loved one had a trust . . . will it have to go through probate?

In most cases, no.  If your loved one’s assets are owned in the name of a trust, the family can contact a lawyer who will complete some paperwork and guide the family through the process with ease and without the need for court involvement.

 

Unfortunately, many people who have a trust think they have it all taken care of.  But too often, family members’ of a recently passed loved one come into our office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.

 

Why is that?

 

Often times, the trust was prepared many years ago and was never updated, and many times their loved ones’ assets were not owned in the name of their trust.  This is why it is extremely important that you carefully choose your estate planning attorney, and have regular reviews of your plan and your assets so the planning you do now works as planned later.

It’s why we do things differently than most other lawyers and law firms, to ensure that our clients' plans work when they and their families need them most.

What assets are subject to probate?

Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.  Talk to an attorney if you have questions about your specific situation.

How is distribution of the estate handled if there is no will?

If there is no will or trust, the estate will be distributed according to the state's probate and intestate laws, which provide that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).

How long does the probate process take?

The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.

How much does probate cost?

Probate fees are set by state law, and can vary depending on the county in which the probate matter is opened, and the size and needs of the esate. In additional to court fees, there will also be attorneys fees if legal counsel is hired, and possibly other associated costs, such as document certification fees, recording fees, property appraisal fees, and more. The executor or administrator is also entitled to a reasonable fee for their services, and the probate court can order additional feeds for more complicated or extraordinary estates.

Getting Help: Choosing the Right Attorney for Your Probate Case

 

The best way to ensure that your loved one's estate is handled properly is to choose your attorney wisely.  Many lawyers only “dabble” in probate or trusts. Unfortunately, often times these lawyers can often cause real problems for their client and the work can take longer than those handled by experienced probate lawyers.

 

You don’t have to use the attorney who prepared the will either. Just because a particular attorney prepared the does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.

If you are looking to get started with the probate process after the passing of a loved one, please contact our experienced probate attorneys here to help determine your next best steps. We are here in service to help you probate your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.