When someone dies in the state of Tennessee, their last will and testament dictates who receives their assets through probate, administered by the executor they named when estate planning. If they did not leave a will, the state decides who gets their real or personal property through the laws of intestate succession. An administrator is responsible for controlling the assets of a decedent who did not leave a will. Both the executor and administrator are personal representatives of an estate; they gather the deceased's assets, pay their debts and taxes, and transfer their property to the beneficiaries or heirs.
Probate in Tennessee
Probate is a court-supervised process that gives a family member such as a surviving spouse, or another trusted person or institution legal authority over the estate. This person gathers the decedent's assets, pays their taxes and debts, and transfers the remaining property to the people who will inherit it. Tennessee probate cases take about six months to a year to conclude, but they may take longer if someone contests a will.
Not all of a decedent's assets go through the probate proceeding. Only those that they owned in their name alone do. Other assets that pass to beneficiaries without probate oversight are:
- Property held in joint tenancy: When one owner passes away, the other automatically becomes the owner of the deceased person's share of the property.
- Property held in tenancy by the entirety: If the decedent owned real property with their spouse, the surviving spouse automatically becomes the owner.
- Payable-on-death bank accounts: A POD passes to the beneficiary named by the decedent on the account.
- Assets registered via transfer-on-death: Tennessee residents can name transfer-on-death beneficiaries for assets that will go directly to those people when they die.
- Life insurance: Life insurance policies or annuities will specify a named beneficiary.
- Retirement accounts: Assets from retirement accounts do not go through probate if the account holder named a beneficiary.
- Living trust assets: Living trust assets held in the trustee's name.
Beginning the Probate Process in Tennessee
If the decedent left a will, the probate process begins when an executor brings the signed will to the county clerk's probate office where the deceased once lived. The court issues the executor letters testamentary, which gives them control of the estate's assets. If there is no will, the court will appoint someone to become the estate's administrator. If the court agrees, it will issue letters of administration to that person. Both executors and administrators are personal representatives of the deceased.
The executor or administrator then opens a checking account for the estate, puts the deceased's money in the account and pays the estate's expenses. They must first get a taxpayer identification number from the IRS before opening the account. They may also sell some of the assets to satisfy debts.
Proving the Will's Validity
According to Tennessee Code Ann. Section 32-1-104, two people must witness the will's signing and one must come to court to prove its validity or submit a sworn statement. If someone contests the will, both witness must prove its validity.
Holographic or handwritten wills are are also considered valid in the state. To prove its validity, Tenn. Code Ann. Section 32-1-105 states that the testator or person writing the will must be at least 18 years old and the entire will must be handwritten and signed by that person. There does not need to be a witness present, but two people must verify the testator's handwriting.
Paying Creditors and Settling Debts
When becoming the personal representative of an estate, that person must notify the deceased's creditors, if they know who those entities are. They can typically find creditors' names by going through the decedent's financial records, including their checkbooks or tax returns.
The probate court clerk gives creditors a chance to make claims against an estate by publishing a death notice in a local newspaper within 30 days of the appointment of the executor or administrator. When creditors learn about about the probate proceeding, they have between four months to a year to make a formal claim. Once they do, the estate's personal representative must pay them.
Transferring Assets and Closing the Estate
A personal representative of an estate has 60 days to complete certain tasks after their appointment:
- They must hand in an inventory of the decedent's property that will go through probate unless the will states that they do not need to file an inventory, or the estate's beneficiaries agree that there is no need for it.
- They must notify everyone who may inherit the deceased's assets under the will's terms or through intestate succession laws.
- If applicable, they must request a release from the state Medicaid agency, TennCare, to prove that the agency won't seek reimbursement from the decedent's estate for nursing home or home care.
After the personal representative pays debts and taxes from the estate, they distribute the remaining assets to the beneficiaries. If the decedent owned real estate outside of Tennessee, the representative may have to open a probate proceeding in that state. Once the representative distributes the estate's assets, their job is complete.
Intestate Succession Under Tennessee State Law
A decedent's assets will automatically go to their next-of-kin if they die without a valid will. How distribution occurs depends on the deceased's marital status and whether they had children. In Tennessee, the intestate succession laws are:
- If a decedent had children but no spouse, the children take everything.
- If a decedent had a spouse but no children or grandchildren, the spouse takes everything.
- If a decedent had a spouse and descendants, all parties share the assets equally, but the spouse must get at least one-third.
- If a decedent had parents but no spouse, children or grandchildren, the parents take everything.
- If a decedent had siblings but no spouse, children, grandchildren or parents, the siblings take everything.
Descendants Estate Shares in Tennessee
Tennessee requires that children who inherit an estate under the Tennessee intestacy laws be the decedent's legal descendants. For example:
- Adopted children receive an equal share of the deceased's estate with their biological children.
- Foster children and stepchildren of the deceased do not automatically receive a share if they were never legally adopted.
- If the decedent put their children up for adoption, and they were legally adopted by someone else, they will not receive a share of the estate. But if the deceased's spouse adopted them, it will not affect their inheritance.
- If a child was conceived by the decedent, but born after their death, they can receive a share of the estate if they live more than 120 hours.
Relatives of the decedent conceived before the decedent’s death, but born thereafter inherit as if they had been born during the lifetime of the decedent.
Children born outside of marriage could receive a share of the estate if the decedent was not married to their mother at the time of their birth, took part in a marriage ceremony that was later voided, or Tennessee law established their paternity. Grandchildren will only receive shares of an estate if the decedent's children are not alive.
- NOLO: Intestate Succession in Tennessee
- NOLO: Tennessee Probate: An Overview
- FindLaw: Tennessee Code Title 30. Administration of Estates § 30-2-306
- FindLaw: Tennessee Code Title 32. Wills § 32-1-104
- Find Law: Tennessee Code Title 32. Wills § 32-1-105
- Find Law: Tennessee Code Title 30. Administration of Estates § 30-2-301
- Find Law: Tennessee Code Title 31. Descent and Distribution § 31-2-108
- Wagner Injury: How Does Intestate Succession Work in Tennessee?
- Probate Advance: What You Need to Know About Tennessee Will Laws
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.