What is Probate? Why is it necessary?
Imagine someone just disappeared leaving all of their belongings. Who do these things belong to now? How do we know that the right person will receive those belonging?
Well, probate is exactly this process. It’s the legal process of bringing a dead person’s property into the land of the living because, after all, the dead can’t take it with them. To be more specific, the probate process is the court-supervised management of a deceased person’s property. In the probate process, a court decides who is (a) living, and (b) has a right to inherit the deceased person’s property. The deceased person’s property is called an “estate.” While probate truly only applies if a person passed away with a will, many people today also use the term to refer when a court distributes a deceased person’s property even if the deceased person didn’t leave a will behind
What Is A Will?
You can think of a will as a set of instructions that a deceased person leaves behind to explain what to do with their property when they are gone. In Tennessee, Any person over 18 years old who has a “sound mind” can make a will that has the power to determine who will receive their property after death. Tenn. Code Ann. 32-1-102. When a person dies with a valid will, courts must honor that will and distribute the deceased person’s estate based on the instructions the deceased person left in the will. This means, when you create a will that meets all the requirements of Tennessee’s laws, any property you own will go to the person you decide should have it if you left instructions about the property in your will. It can be complicated to construct a will that meets all of the legal requirements of a valid will. This is why it is very important to consult with an attorney when writing a will, otherwise your loved ones may end up arguing over the terms of your will in court for years, or the court may find your will is invalid and take control of how your property will be distributed. For example, in one Tennessee Case, In re Estate of Mary Reeves Davis, family and friends of a deceased person have contested a will in court for over a decade! 308 S.W.3d 832 (Tenn.).
What Happens to the Property of Someone Who Dies Without a Will?
Great question! When a person does not leave a will behind, courts are bound by Tennessee’s laws when deciding how to distribute a deceased person’s property. Tennessee (and all other states) have laws that specifically tell courts who will receive a deceased person’s property if the deceased person had no will. See Tenn. Code Ann. 32-1-102. Dying without a will is legally known as “dying intestate.” “Intestate Succession" is the process of distributing the estate of a person who did not leave a will behind. The crucial takeaway here is that, if you want any say in who receives your property when you die, you must have a valid will or another type of very specific plan for your assets when you die.
So, What Does the Probate Process Look Like When Someone Dies?
If the deceased person left a will, any interested party – meaning, any person who has some stake in how the deceased person’s property will be distributed – can file the will with the appropriate court. In most Tennessee Counties, the appropriate court is the chancery court, but some counties, Like Davidson County, have a specialized probate court. Tenn. Code. Ann. 32-3-109. Once the will is filed, the court will determine whether or not the will is valid. If the will is valid, then the court will appoint what is called an “executor.” An executor is the person responsible for seeing that the instructions in the will are followed. The court-appointed executor will receive “letters of administration,” which is a legal term describing documents that show the executor can act on behalf of the deceased person’s estate. Then, the executor will be responsible for accounting for all the assets in the estate, paying any debts of the deceased person, and distributing the estate according to the will.
If the deceased person didn’t leave a will, how that person’s estate is distributed depends completely on whether they were married, whether they had children, and who their other relatives are. It also depends on how much the deceased person’s estate is worth.
The Person Is Not Living, So Why Is the Court Involved?
It may seem strange that the court would need to interfere with your property, or a loved one’s property for that matter. But, the purpose of the probate process is to protect against people stealing or destroying a deceased person’s property. It is also a way to ensure that the wishes of the deceased person are followed after they die, since they can no longer tell us what they want. Even for people without a will, Tennessee’s laws try to follow what is believed to be the closest thing to the wishes of the deceased person. If you’re thinking, “Well, they’re dead, so can’t I just take the property,” the answer is a big “NO.” It is a felony, punishable by imprisonment, to interfere with a deceased person’s property with the intent to defraud or to prevent the probate process from occurring. Tenn. Code Ann. 32-14-131. That includes destroying or concealing a will! So, be extra careful with the property of anyone who has died.
Ultimately, every estate is different. Likewise, every will is different. The exact probate process will vary depending on whether there is a will, and if there is a will, what the instructions in the will say. If you are concerned about a deceased person’s estate, or if you want to ensure that you know what will happen with your property someday, we are here to help! At Joe Kwon Law, we are experienced with helping people make wise decisions about their estate and the estates of loved ones. Don’t hesitate to contact us if you have any questions about a will, or the probate process in general!