What is probate?

What is probate?


Historically speaking, the origin of probate was the process when a court officially “proved” a will. Probate, today, also now involves the process of administering the estate of someone who dies without a will.  We say that a person who dies with a will is “testate” and a person who dies without one dies “intestate”.  If that’s not confusing enough, you can be both testate and intestate.  This usually happens when a will is old and does not dispose all of the person’s property. Probate is not necessarily a bad thing and can be quite simple if your affairs are in order.  Unfortunately, that is not always the case.

In addition, probate courts in Tennessee oversee guardianships and conservatorships.  A useful way to understand the difference is that guardianships and conservatorships are essentially a “living probate” process and proving a will or administering an estate of a person without a will is a “death probate” process.  The entire probate process – in very general terms – is the court giving control of something belonging to one person to another person.  In living probate, a conservatorship or guardianship, an individual is given legal power over another person – either a minor or an incompetent person. There are obvious reasons you want to avoid going to probate where a judge would decide this for you and your family.   Ideally, a decision about conservatorship or guardianship should be made in a power of attorney well in advance of when it is needed.

Understanding the process can save you time, frustration, and heartache by avoiding the living probate process. Imagine a court conducting a trial to appoint a conservator for a loved one if he or she suddenly becomes mentally incompetent or a danger to himself or others. Your loved one will be examined by physicians and the judge will appoint a separate attorney for him or her. The process can be very expensive and lengthy as well as acrimonious. If your loved one is in crisis the delays can be frustrating and hard feelings may result within your family. This is a last resort and should be avoided.  Creating a power of attorney or establishing a trust can avoid living probate and help to bypass the probate process altogether.

Death probate, on the other hand, is when the court gives something (property or money) that belongs to one person to someone else. This usually happens through the proving of the will. In probate court, money from an estate pays creditors or money and property is distributed to heirs or beneficiaries. If an individual has a will, they may or may not even need to go to court to have the estate distributed. If an individual dies intestate – does not have a will – the probate court will divide up the property according to default rules under Tennessee law.  This can result in surprise and disappointment.

For example, how you own your property will determine who gets it.  If you do not jointly own your home or property with your spouse, Tennessee intestacy law says that a spouse will receive a child’s share.  The spouse does not automatically gain complete ownership of the property.  If you own property jointly with a right of survivorship and one owner dies, the living joint owner takes over the property without having to go to probate. Understanding this and preplanning are the keys to making sure your property goes to the people that you want to have it.

A court is not going to require you to hire an attorney to probate will.  If the estate is small and simple enough, an attorney may not be needed.  Still, it is not a bad idea to consult a lawyer before you even make that decision. Keep in mind, that there are traps for the unwary that can hurt you when it comes to settling an estate. While the judges and clerks in Middle Tennessee are helpful regarding how the process works, they cannot and will not tell you what you should do.  They are prohibited from giving legal advice.

So, is probate something to be avoided at all cost? While it is not a bad thing in and of itself, it is always good to try to get your legal and financial affairs in order before your family ends up in probate court. For most people putting an estate plan together is not exactly their idea of fun, but almost universally, when I ask my clients how they feel when we get their plan in place, they use the same word: Relieved.

Randy Ratliff is a Brentwood attorney practicing estate and elder law. He can be reached at trust@RandyRatliff.com or www.randyratliff.com

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