Probate is the court process for validating a will and appointing the personal representative to handle the estate. Probate also includes the process for administering the estate of the person who died. Experienced lawyers often represent the personal representative. They may also represent claimants who seek to invalidate the will or have a claim against the estate.
Executors shouldn’t go through the probate process on their own. Skilled probate lawyers help ensure that you have the original of the will. They also ensure the executors have the correct documents to open estate checking accounts, transfer stocks, sell real property, and collect all other estate assets. Further, probate attorneys help the executor resolve any claims against the estate.
An experienced probate team explains what debts and administrative expenses need to be paid. With the help of a lawyer, you should be able to distribute the net assets to the rightful heirs within a reasonable amount of time so you and the heirs can live out the wishes of the person who died.
What are the types of will contests and claims?
There are several ways in which an executor may have to defend claims in court. An experienced Maryville lawyer guides the executor through these various types of claims:
Challenges to the validity of the will
If a son, daughter, or someone who expects an inheritance is not included in the will of the decedent; they may challenge the validity of the will that is submitted for probate. The grounds for contesting a will include:
- The decedent lacked the testamentary capacity to make the will. Essentially, this challenge claims that the testator (the person who made the will) didn’t understand what his/her estate included and who the natural heirs were. A common challenge is that the testator had dementia at the time the will was executed.
- The will was created through undue influence. This challenge requires that the claimant show that the person who did receive a share of the estate was in a confidential relationship with the testator and pressured the testator to favor the person accused of undue influence – instead of the claimant.
- The will lacked the proper formalities. In Tennessee, wills generally require witnesses and must be in writing.
- Subsequent changes. A will may be denied probate if there is a later will or if a codicil to the will was executed after the original will was executed.
Challenges to the appointment of the personal representative
An executor is the person appointed by the testator in his/her will. A claimant may challenge the appointment of the executor on the basis that the will itself is invalid or on the basis that the executor isn’t qualified to act – for example, the executor has dementia. If there is no will, then there may be a contest as to which person (usually which relative) can be appointed the administrator/personal representative of the estate.
Challenges to the administration of the estate
Some heirs may claim that the estate isn’t being handled properly. For example, they may claim the executor isn’t accounting for all the probate assets.
Claims of creditors
Creditors of the decedent do have the right to submit their claims to the probate court. Many claims of creditors can be settled. Some may require litigation. For example, an executor may assert that a creditor’s claim isn’t valid.
What happens when someone dies without a will?
If the decedent had assets but did not have a will, the probate court must appoint a personal representative. A Maryville probate lawyer will explain who can ask to be appointed the personal representative and which people (usually family members) have priority.
The lawyer will also explain how the intestate laws of Tennessee work. The intestate laws determine which heirs are entitled to a portion of the decedent’s estate. These laws also set forth how much each heir can claim. The spouse and children of the decedent typically have the highest priority. Parents are generally next in line, followed by siblings.
How can a lawyer help administer the estate?
A probate lawyer helps the personal representative administer the decedent’s estate. A representative must follow a fairly precise process after the will goes through probate or, for an intestate estate, the court appoints an administrator. The process typically goes as follows:
- Identifying the probate property. The personal representative normally knows what property the decedent owned. Ideally, the decedent gave the personal representative a list or spoke to the representative about his/her estate. Some assets may not need to pass through the estate, such as life insurance proceeds that name a specific beneficiary or trust assets.
- Valuing the assets. Many assets, such as bank accounts, have a clear date of death value. Assets such as homes, cars, jewelry, and businesses may need to be valued by a professional appraiser.
- Paying the debts and administrative expenses. The claims of creditors need to be paid. Administrative expenses include probate filing fees and the compensation to which the personal representative and the lawyer are entitled.
- Paying taxes. Any federal estate taxes must be paid. The lawyer often helps the executor prepare the decedent’s federal and state income taxes for the last year of his/her life. The personal representative may also have to pay fiduciary income taxes. However, Tennessee does not have an inheritance tax.
- The distribution of the estate. Once the estate bills are paid and all the assets have been identified and collected or transferred – the personal representative distributes the net assets to the rightful heirs, either the heirs named in the will or the heirs entitled to receive through the Tennessee intestate laws.
At Shepherd & Long, P.C., our Maryville probate lawyers understand how tragic it is when a loved one dies. We have the experience and resources to help executors manage the estates of their relatives or loved ones in the way the decedent would have wanted them to. Residents of Maryville, Blount County, and East Tennessee can call us at 865-982-8060 or fill out our contact form to discuss the probate of an estate.