Frequently Asked Questions about Probate
Have questions about getting your estate plan together? Check out this page that addresses common questions that our clients ask.
What happens if I die without a Will?
If you fail to plan your estate and die without a Will, the law has a default plan for you: intestacy. The law prescribes both the persons to whom your property will pass and the division of your estate among those persons. The distributions provided by law are inflexible and may not reflect your wishes regarding the distribution of your assets. This can be especially problematic for business owners.
In addition, if your children are minors at the time of your passing, the assets have to be held in a guardianship estate with court supervision until they reach the age of majority. This can be a costly and bureaucratic arrangement.
If you have a surviving spouse and no children, he or she generally receives the entire estate. But if there are children, the surviving spouse shares the estate in proportions defined by state law. This may not reflect your wishes. In order to avoid this situation, having a Will and/or Trust that clearly carries out your desires is critical.
Who is in charge if I die without a Will?
If someone dies without a Will in Tennessee, state law decides who inherits the estate. This is called intestate succession. The surviving spouse and children inherit first; if there are none, the estate passes to the next closest relatives—parents, siblings, then more distant family.
Because there’s no Executor named, the probate court appoints an Administrator to handle the Estate. Tennessee sets a priority list for who can serve. The order starts with the surviving spouse, then children, then other relatives.
Even without a Will, the Administrator must follow the probate process. The Administrator cannot distribute assets until debts, taxes, and expenses are handled. Tennessee’s priority of claims law outlines which creditors get paid first.
How long does the probate process take?
Every Estate is different. But all Estates must go through a four-month Notice to Creditors period. During this time, anyone with a claim against the Estate can file to be paid. The Estate must be open for at least this amount of time.
Estates with straightforward distribution plans and minimal disputes can sometimes be completed in around 6 months total. But there can be issues completely out of our control that lengthen the process.
Many Estates take 9–12 months from start to finish. Delays happen when the Estate has real property to sell, several creditors, or missing paperwork. Contested matters, like Will contests or disputes among the Beneficiaries, can push this timeframe out to 18 months or more.
What assets have to go through probate? What assets don’t have to be probated?
Only assets titled solely in the Decedent’s name with no beneficiary designation or right of survivorship go through probate. This can include real property owned only in the Decedent’s name, personal bank accounts and investment accounts with no beneficiary designated, and tangible personal property.
Assets with a valid beneficiary or right of survivorship survivorship feature typically bypass probate and transfer automatically.
Examples of assets with beneficiary designations include:
- Life insurance and retirement accounts with named beneficiaries
- Bank accounts with a payable-on-death (POD) beneficiary
- Brokerage investment accounts with a transfer-on-death (TOD) beneficiary
Jointly titled assets may have a right of survivorship, which means no probate is necessary for such assets. This can include:
- Real property owned by spouses jointly
- Joint bank accounts
- Joint investment accounts
- Tangible personal property owned by spouses jointly
Assets held in a Revocable Living Trust also avoid probate because the Trust, not the individual, owns the property.
Note about real property: Real property is not included in the Estate by default. Title to the property vests automatically in the Beneficiaries of the Estate. In some situations, real property can be brought into the Estate, but this is for a separate discussion.
What does the Executor/Administrator actually need to do?
The Personal Representative’s job is to manage the Estate from start to finish. In Estates where there is a Will, this person is an Executor. In Estates where there is no Will, this person is an Administrator.
The PR locates the Will, retains counsel, files a petition with the local probate court to open the Estate, and is then issued Letters Testamentary or Letters of Administration. Once appointed, the PR gathers information about the Decedent’s property: bank accounts, investments, real estate, personal items, and any debts that were outstanding.
Next, the PR secures and protects the Estate’s assets. They may need to retitle accounts, maintain insurance coverage on the Estate’s assets, collect income owed to the Estate, and keep detailed records. The PR must also notify creditors, pay valid debts, handle final tax filings, and make sure bills and expenses are tracked and paid using Estate funds.
After paying debts and expenses, the PR distributes what remains to the Beneficiaries according to the terms of the Will or according to intestate succession. The PR must keep the Beneficiaries informed, provide an accounting when required, and close the Estate properly with the court.
The role of Personal Representative is not just an honorary title. There is serious work involved with significant liability on the line.
Does Tennessee have an estate tax or inheritance tax?
Tennessee repealed its inheritance tax for Decedents with a date of death after January 1, 2016. There is no inheritance or estate tax for anyone who dies after this date.
Federal estate taxes are still in effect. The good news is that few people have to worry about this. The exemption from estate tax is $15 million per person, $30 million for a married couple, as of January 1, 2026. The IRS will index this exemption level each year for inflation.
If your estate is below this threshold, neither you nor your Beneficiaries need to be concerned about estate taxes.
What happens to a deceased person’s debts?
Debts that a Decedent owed become the responsibility of his or her Estate. Beneficiaries are not responsible for these debts, nor is the Personal Representative.
Creditors must file a Claim against the Estate once it is open. They must prove the validity of the debt and that they are entitled to payment. If the Claim is properly documented, the Estate must pay the Claim from its assets.
If there is reason to doubt the validity, the PR can file an Exception to the Claim. The probate court holds a hearing on the Exception and determines if there is sufficient proof. If the Creditor does not show up (which often happens), the court will deny the Claim, and the Estate saves that money.
How are debts handled if the Estate doesn’t have enough money to pay everything?
If the Estate is insolvent, meaning there isn’t enough money to pay all debts, the Personal Representative does not pay debts personally. The PR must file a notice of insolvency with the court and send a copy of the notice to all Creditors who filed a Claim.
The Estate must have a plan to pay debts in a specific legal order set by Tennessee law.
- Expenses of administration, which include court costs and attorney’s fees;
- Reasonable funeral expenses;
- Taxes owed to local, state, and/or federal governments;
- All other claims.
The PR cannot “pick favorites.” Payments must follow the priority order. The PR must keep detailed records of who was paid, how much, and why.
Beneficiaries generally do not receive distributions until all debts and expenses are resolved. If the Estate runs out of assets, the process ends there. The PR closes the insolvent Estate, and any outstanding Creditor Claims simply go unpaid.
What does probate cost?
Probate costs vary depending on the size and complexity of the estate. But most Tennessee families can expect court filing fees, publication costs (to notify Creditors), legal fees, compensation to the Personal Representative, and (possibly) accountant fees.
Attorney fees are usually the largest expense, especially if there are complications like selling real property, creditor disputes, or family conflicts. Compensation to the PR can also be substantial if there is a lot of work involved. Serving in this position is similar to having a part-time job, and the PR is entitled to reasonable compensation by law.
For ordinary expenses of administration, families can expect around $5,000 in legal fees on the low end. PR compensation may also be a few thousand. For more complex Estates, legal fees can quickly exceed $10,000.
These costs are usually subject to court approval. But if all Beneficiaries are competent adults and agree to legal fees and PR compensation, there is no need to request court approval. This makes the process more efficient and less expensive, so cooperation is in everyone’s interest where possible.
The Estate generally pays these expenses, not the PR or Beneficiaries personally. While it is common for legal counsel to take a retainer upfront, this will usually be refunded when the Estate is open, and there are assets available to pay such expenses.
Specific estate or business questions? Check out our Resources or Contact Us!