When My Loved One Dies, How Is the Will “Read”?

Movies and television have given many people the wrong idea about what happens after someone dies.

You may picture the family gathered in a lawyer’s office while the attorney dramatically opens an envelope and reads the will aloud. One family member inherits the house. Another receives the family business. Someone else is shocked to learn that he or she has been left out.

That may make for good television, but it is not how the process normally works in Tennessee.

Is There an Official Reading of the Will?

No. A Tennessee attorney does not ordinarily call the family together for a formal “reading of the will.”

Instead, the original will is filed with the appropriate court as part of the probate process. The probate petition identifies the deceased person’s heirs and the beneficiaries named in the will. The heirs and beneficiaries are then provided with the appropriate probate documents, including the will and petition, as required by Tennessee law and applicable court procedures.

Tennessee law also requires the personal representative, generally within 60 days after beginning the administration of the estate, to notify the beneficiaries named in the will. A beneficiary who shares in the remainder of the estate is generally sent a complete copy of the will. A beneficiary receiving only a specific gift may be sent the portion of the will describing that gift.

In practical terms, this is the real-life “reading of the will.” Instead of gathering in a lawyer’s office to hear the document read aloud, the heirs and beneficiaries receive the probate paperwork and the applicable provisions of the will in writing.

What Is Probate?

Probate is the court-supervised legal process used to administer a deceased person’s estate.

During probate, the court determines whether the deceased person left a valid will and appoints someone to administer the estate. The person appointed is usually called the executor or personal representative.

The probate process generally includes:

·         Filing the original will and petition with the court

·         Appointing an executor or personal representative

·         Identifying and collecting the estate assets

·         Notifying beneficiaries and creditors

·         Paying valid debts, expenses, and taxes

·         Resolving claims or disputes

·         Distributing the remaining property

·         Closing the estate

The exact process depends on the language of the will, the types of property involved, the deceased person’s debts, and whether any disagreements arise.

Step One: Locate the Original Will

After a loved one dies, the first step is usually to locate the original signed will.

The original may be kept in a home safe, safe-deposit box, filing cabinet, or another secure location. It may also be held by the attorney who prepared it.

A photocopy can be helpful, but the original signed document is generally needed. When the original cannot be located, additional legal issues may arise.

The family should also begin gathering other important papers, including:

·         Death certificates

·         Trust documents

·         Deeds

·         Bank and investment statements

·         Life insurance policies

·         Vehicle titles

·         Retirement account information

·         Business records

·         Recent tax returns

·         Bills and creditor information

Step Two: Determine Whether Probate Is Necessary

Not every asset passes through probate.

Some property may pass directly to another person because of the way the property is owned or because a beneficiary has been named. Common examples include:

·         Jointly owned property with rights of survivorship

·         Life insurance with a designated beneficiary

·         Retirement accounts with a designated beneficiary

·         Payable-on-death or transfer-on-death accounts

·         Property held in a properly funded trust

The will generally controls only property that becomes part of the probate estate.

This often surprises families. A will does not automatically override a beneficiary designation or the legal ownership of an asset. For example, if a bank account names a payable-on-death beneficiary, that account will ordinarily pass to the named beneficiary rather than under the will.

An attorney can review the deceased person’s property and determine which assets must be handled through probate.

Step Three: File the Will and Petition in the Proper County

When probate is required, the original will and a verified petition are generally filed with the court exercising probate jurisdiction in the Tennessee county where the deceased person resided at the time of death.

In legal terms, this is usually the county where the deceased person was domiciled, meaning the county that was considered the person’s permanent home.

The petition provides the court with important information, including:

·         The deceased person’s name, date of death, and residence

·         The identity of the person asking to open the estate

·         The names and relationships of the heirs and beneficiaries

·         Information about the will and its witnesses

·         The identity of the proposed executor or personal representative

·         An estimate of the estate’s value when required

·         Whether the will waives an inventory or accounting

A copy of the will is filed as an exhibit to the petition.

The petition asks the court to accept the will for probate, appoint the executor or personal representative, and issue the legal authority needed to administer the estate.

Step Four: The Court Appoints the Personal Representative

The will usually nominates someone to serve as executor. However, being named in the will does not automatically give that person the authority to act for the estate.

The court must first appoint the person and issue the appropriate legal documents.

When there is a will, those documents are generally called Letters Testamentary. When there is no will, they are called Letters of Administration.

The letters authorize the personal representative to act on behalf of the estate. The personal representative may then be able to:

·         Access estate accounts

·         Open an estate bank account

·         Collect and protect property

·         Obtain financial information

·         Pay proper estate expenses

·         Sell property when appropriate

·         Sign documents for the estate

·         Make distributions when legally permitted

Until the court issues the letters, family members should be cautious about attempting to transfer, sell, or distribute estate property.

Step Five: Notify the Heirs, Beneficiaries, and Creditors

The probate petition identifies both the beneficiaries named in the will and the people who would have inherited under Tennessee law if there had been no will.

The heirs and beneficiaries are provided with the appropriate probate filings, including the petition and will, so they can see who has asked to administer the estate and what the will provides.

As noted above, Tennessee law specifically requires notice to the beneficiaries named in the will. Residuary beneficiaries generally receive a complete copy of the will. A person receiving only a specific gift may receive the paragraph or paragraphs describing that gift. The personal representative must then file an affidavit confirming that the required copies were mailed or delivered.

This written notice is the closest thing Tennessee probate has to the traditional “reading of the will.”

Creditors must also be addressed. Notice to creditors is generally published, and known or reasonably ascertainable creditors may also be entitled to actual notice. Creditors then have an opportunity to file claims against the estate.

Every estate also is required to inquire with TennCare to determine if there is any amount owed to TennCare.  The release from TennCare must be filed with the Court before any estate can be closed or distributed.

The executor should not immediately divide the money or personal property among the beneficiaries. The estate’s legal obligations must be determined and paid before final distributions are made.

Step Six: Identify and Manage the Estate Assets

The personal representative must determine what the deceased person owned and which assets are part of the probate estate.

Depending on the estate, this may involve:

·         Opening an estate bank account

·         Collecting funds from bank and investment accounts

·         Securing the deceased person’s home

·         Protecting vehicles and personal property

·         Obtaining appraisals

·         Managing or selling real estate

·         Continuing or winding down a business

·         Collecting money owed to the deceased person

·         Filing an inventory when required

The personal representative must keep careful records of all money received, bills paid, property sold, and distributions made.

The personal representative has a fiduciary duty to the estate and its beneficiaries. This means the personal representative must act carefully, honestly, and in the best interests of the estate rather than treating the estate property as his or her own.

Step Seven: Pay Expenses, Debts, and Taxes

Before the beneficiaries receive their inheritances, the estate may need to pay:

·         Funeral expenses

·         Court costs

·         Attorney’s fees

·         Personal representative compensation

·         Appraisal and accounting expenses

·         Valid creditor claims

·         Property expenses

·         Income taxes

·         Other costs of administering the estate

The personal representative should not assume that every bill must automatically be paid. Claims should be reviewed to determine whether they are valid, enforceable, and timely.

Likewise, the personal representative should not ignore a bill merely because the family disagrees with it. Tennessee law establishes procedures for filing, reviewing, disputing, and paying claims against an estate.

Step Eight: Distribute the Remaining Property

After the estate’s debts, expenses, taxes, and other obligations have been addressed, the remaining property may be distributed according to the will.

Some wills leave particular property or specific amounts of money to named people. For example, a will may leave a vehicle to one person or a fixed amount of money to another.

The remainder of the estate is called the residuary estate. The residuary estate is distributed to the people or organizations named as residuary beneficiaries in the will.

If there is no valid will, the remaining estate is distributed under Tennessee’s intestate succession laws. In that situation, Tennessee law determines who inherits. The deceased person’s verbal statements or the family’s expectations do not replace the statutory distribution rules.

Step Nine: Close the Estate

The final stage is closing the estate.

Depending on the circumstances, the personal representative may be required to file an accounting showing:

·         The property received by the estate

·         Income earned during the administration

·         Bills and expenses paid

·         Property sold

·         Distributions made to beneficiaries

·         The remaining balance of the estate

Some wills waive formal accountings, and the beneficiaries may be able to waive certain requirements in appropriate cases.

Once all required work is completed, the appropriate documents are filed with the court. The court may then discharge the personal representative and close the estate.

How Long Does Probate Take?

There is no single answer.

A relatively straightforward estate may be completed without extensive court involvement. A complicated estate may take much longer, particularly when it involves:

·         Disputed creditor claims

·         Family disagreements

·         A will contest

·         Difficult-to-value property

·         Real estate that must be sold

·         Business interests

·         Missing beneficiaries

·         Tax issues

·         Property located in multiple states

·         An insolvent estate

Probate is a process, not a single meeting or event.  There is a four-month waiting period for the creditors to appear.  So no estate is closed before four or six months typically.  Many are open for a year or more.

What Should the Family Do First?

After the immediate funeral and family arrangements have been made, the family should locate the original estate-planning documents and speak with a Tennessee probate attorney.

Family members should avoid transferring, selling, giving away, or dividing the deceased person’s property before determining whether the property belongs to the probate estate.

They should be especially careful about removing sentimental items from the home. Even when everyone initially appears to agree, problems can arise if an item is specifically mentioned in the will, if more than one person believes the item was promised to them, or if estate property must be sold to pay expenses.

The Bottom Line

In Tennessee, a will is not normally “read” to the family in a dramatic meeting like you see in the movies.

Instead, the original will and a petition are filed with the probate court in the county where the deceased person resided. The court appoints a personal representative, and the heirs and beneficiaries receive the appropriate probate documents and information about the will.

That written notice is the real-world version of the “reading of the will.”

The personal representative then identifies the estate property, addresses creditor claims and expenses, distributes the remaining assets according to the will, and completes the steps required to close the estate.

An experienced Tennessee probate attorney can help determine whether probate is necessary, explain which property is controlled by the will, and guide the personal representative and family through each stage of the process.

This article is intended for general educational purposes only and does not constitute legal advice. Tennessee probate requirements vary depending on the facts of each estate. You should consult a Tennessee attorney regarding your particular circumstances.