Probate is the legal process of proving a decedent\u2019s will\nand transferring his or her assets to devisees or heirs. The probate process is\ncodified at Titles 30-32, 35 of the Tennessee Code.<\/p>\n\n\n\n
When a decedent dies, his or her assets become part of the\nestate. The way the decedent\u2019s property is titled determines which assets are\nsubject to probate. Probate property typically includes any property the\ndecedent held in his or her name alone. Property titled with a right of\nsurvivorship or with a beneficiary designation is generally exempt from probate,\nas is property held in a trust.<\/p>\n\n\n\n\n\n\n\n
The first step of initiating probate is determining whether\nthe decedent died testate (with a last will and testament) or intestate (without\na will). Assets not devised according to a will are transferred via the state\u2019s\nlaws of descent and distribution (Title 31). Devises, or testamentary\ndispositions of real or personal property (T.C.A. 31-1-101(2)), made by the\ndecedent in his or her will are not valid, however, until the will is proven in\nprobate. In Tennessee, a probated will is sufficient evidence of a devise of\nreal estate (T.C.A. 32-2-107, 32-2-111). <\/p>\n\n\n\n
The next step is appointing a personal representative (PR).\nA PR acts in a fiduciary capacity to settle the estate. When the decedent dies\ntestate, the court grants letters testamentary to the named executor. T.C. A.\n30-1-106 establishes preference in the court\u2019s granting of letters of\nadministration in an intestate estate. The letters provide evidence that the PR\nis acting in his or her duly authorized capacity and allow him or her to open\nthe estate. <\/p>\n\n\n\n
T.C.A. 30-1-117 establishes the content requirements for a petition\nfor grant of letters to administer an estate, and documents to be filed with\napplication for letters. A valid petition identifies the petitioner; states the\ndecedent\u2019s name, age, place, and date of death, as well as his or her residence\nat the time of death; the name, age, and address of each heir, if the decedent\ndied intestate, or devisee or legatee, if the decedent died testate, along with\nhis or her relation to the decedent; and must also contain any document offered\nfor probate, attached as an exhibit to the document. <\/p>\n\n\n\n
If there is a will, the petition should also indicate\nwhether such will waives the personal representative\u2019s accounting requirements,\nand a statement as to whether the attached document has been revoked, and that\nthe petitioner believes such document to be the decedent\u2019s last will.<\/p>\n\n\n\n
A decedent\u2019s will is proved and recorded, and letters\nissued, in the county where he or she maintained residence (32-2-101). The\ncourt with jurisdiction in probate proceedings depends upon the county. Some\ncounties in Tennessee have their own probate courts; in others, probate is handled\nby the probate division of the chancery court.<\/p>\n\n\n\n
Administrative duties officially begin once the PR is\ngranted letters. Duties of the personal representative include, but are not\nlimited to, filing requisite legal forms and mailing affidavits of notice, taking\ninventory of the estate, filing tax returns, paying valid claims on the estate\nand expenses of administration, which may include family and homestead\nallowances, and distributing the estate after final accounting. Unless limited\nby the terms of a will, the PR has the specific powers outlined in T.C.A.\n35-50-110, and may act upon them without needing court approval.<\/p>\n\n\n\n
When the decedent\u2019s personal property is insufficient to pay\nthe estate\u2019s debts, the personal representative \u2013 executor or administrator \u2013\nmay petition the court for sale of land (30-2-402). The court may decree a sale\nif there is sufficient evidence that the land should be sold. <\/p>\n\n\n\n
The personal representative must seek court permission for\nsale of real property where the decedent\u2019s will does not grant a power to sell\nreal estate, and in intestate estates (30-2-418). The clerk is required to\nprovide notice of sale to heirs and devisees and other interested parties of\nthe proceedings. After notice and appraisal of the property, the court may\norder the sale. <\/p>\n\n\n\n
To transfer title to real property to a purchaser following a\nsale, the PR executes and records a fiduciary deed. Depending on the type of\nletters the PR holds, this is either called an executor\u2019s deed or an\nadministrator\u2019s deed. <\/p>\n\n\n\n
Typically, executors\u2019 and administrators\u2019 deeds contain\nfiduciary covenants akin to those found in a special warranty deed, and the\ndeed may even be indexed as a special warranty deed in the county land records.\nThe warranty of title in a special (limited) warranty deed only covers the\nperiod that the grantor held title to the property, along with covenants that\nthe grantor is lawfully seized and possessed of the property in fee simple and\nhas a good right to convey it, and that the property is unencumbered, unless noted\non the face of the deed.<\/p>\n\n\n\n
Fiduciary deeds name the personal representative as the\ngranting party, reference the decedent, and may cite information about the\nprobated estate, such as the county of probate and the case number assigned to\nthe estate. A fiduciary deed follows the same formalities as any deed affecting\ntitle to real property, which include a legal description of the subject\nparcel, the parcel and map numbers assigned by the taxing authority, and a\nrecitation of the grantor\u2019s source of title. Any restrictions on the property\nshould be noted on the face of the deed. <\/p>\n\n\n\n
Instruments in Tennessee also require an oath of value\n(T.C.A. 67-4-409(a)). On any type of warranty deed, the oath reflects the\nconsideration made for the transfer or what was given for the transfer, or the\nvalue of the property, whichever is greater. This oath is made and signed by\nthe grantee or the grantee\u2019s buyer or agent, typically at the time of recording,\nas directed by the document\u2019s preparer. Conveyance tax is levied based on the\namount reflected in the oath of consideration and is due upon recording.<\/p>\n\n\n\n
After claims on the estate are paid, the PR may distribute\nthe estate. An affidavit of heirship under T.C.A. 30-2-712, when recorded in\nthe county where the affected property is situated, is evidence of the transfer\nof title to successors in interest of the decedent\u2019s real property. A standard\naffidavit of heirship contains the legal description of the realty and lists\nthe heirs by name, address, and relation to the decedent. <\/p>\n\n\n\n
Tennessee law requires recipients of a distribution from the\ndecedent\u2019s estate to execute a receipt to the personal representative of any\nlegacy, distributive share, or interest in the estate, and made under penalty\nof perjury or before a notary public (20-2-707). The PR files receipts with the\ncourt as evidence that the estate is distributed according to the terms of the\ndecedent\u2019s will or laws of intestate succession, and that the distributees\nacknowledge the estate has been properly distributed. <\/p>\n\n\n\n
Record deeds and instruments relating to real property in the Register of Deeds\u2019 office of the county where the subject land is situated. Instruments affecting interests in real property must meet state and county requirements for form and content, and should reflect the preparer\u2019s name and address, the property tax address, and be signed by the granting party in the presence of a notary public. Include any requisite documentation with the deed, which may include a certificate of probate, certified copies of a will, or related probate orders.<\/p>\n\n\n\n
Related Tennessee Probate Forms:<\/p>\n\n\n\n
The information provided here is not a substitute for legal\nadvice and does not address specific probate situations. Consult an attorney\nlicensed in the State of Tennessee with questions regarding fiduciary deeds and\nprobate procedures in that state, as each situation is unique.<\/p>\n","protected":false},"excerpt":{"rendered":"
Probate is the legal process of proving a decedent\u2019s will and transferring his or her assets to devisees or heirs. The probate process is codified at Titles 30-32, 35 of the Tennessee Code. When a decedent dies, his or her assets become part of the estate. The way the decedent\u2019s property is titled determines which […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,18],"tags":[],"class_list":["post-94","post","type-post","status-publish","format-standard","hentry","category-probate","category-tennessee"],"yoast_head":"\n