Probate Services

When someone you love dies, there is grief, sadness, confusion, and possibly stress. Our probate services can help by guiding you through the estate administration process with care and expertise.

If someone names you as an executor in their Will, you must petition the court for legal authority to administer the estate.

Olivia Wann has assisted hundreds of families in serving as the estate’s attorney. She will guide you on the process and help you deal with all the loose ends that may have been left behind.

To help you understand your role as the personal representative, what the attorney will need from you, and what we can help you with, please review the following:

Grandparents and granddaughter enjoy sunset on a lake dock

Understanding Probate Terms

An Executor:

is the person appointed in a person’s Last Will and Testament to administer the will. Executor is the masculine and Executrix is the feminine. It is now customary to use the term Personal Representative which is gender neutral.
An Administrator:

refers to a person appointed by the court to manage the assets and liabilities of the person who died without a will. Administrator is the masculine term and Administratrix is the feminine.
An Administrator CTA:

is a person appointed by court to manage the assets and liabilities of the person who died, when a prior Administrator, Executor, or Personal Representative can no longer act or when the person appointed in the Will refuses to act.

Before you assume the role, the court must officially appoint you as the Administrator, Executor, or Personal Representative. You will receive Letters of Testamentary (when the decedent died with a will) or Letters of Administration (when the decedent died without a will).

Decedent:

is the term used to refer to the person who died.
Bond:

is the term for monies held by the court in case the Personal Representative makes a mistake, allowing the beneficiaries to be compensated for such mistake.
Heirs at law:

refers to the individuals, according to state law, that inherit when someone dies.
Personal Representative:

is used throughout this brochure to mean an Exactor, Executrix, Personal Representative, Administrator, Administratrix, and Administrator CTA.

Different Ways to Handle an Estate

Before opening a probate, our lawyers meet with the nominated Personal Representative or family members to identify assets and determine whether probate is necessary.

There are different ways to handle the estate:

Small Estate Affidavit
Muniment of Title
Affidavit of Heirship
Probate
No probate because assets are jointly titled or have survivorship options

Small Estate Affidavit:

avoids a full probate providing the estate is valued less than $50,000 and there is no real property (land, house). This process may be used to administer the estate’s bank accounts, stocks, bonds, retirement accounts, unclaimed property, life insurance proceeds and other personal property. There is a 45-day waiting period from the date of death. A bond must be posted equal to the estate value, unless waived in the Will or all beneficiaries agree to waive the bond. We must list all the creditors. The Affiant, the person in charge of distributing the assets, is finally discharged from liability under bond when the time of one year has passed or submitting an affidavit that all creditors have been paid.
Muniment of Title:

is also a way to avoid a full probate. This process is used when the decedent leaves a will, and real property is the only asset in the estate. It cannot be used to distribute personal property such as furniture, vehicles, and bank accounts.
Affidavit of Heirship:

is utilized to transfer real estate when there is no will and the property is distributed to the decedent’s heirs at law, such as spouse and children.

If the decedent was 55 or older, state law requires that we file a release from the Bureau of TennCare. When TennCare pays long-term care benefits, they will seek to recover those funds from the estate. If no benefits were utilized, they will provide a release. This is required in the probate process and is necessary to sell the real estate.

Initial Procedures

Locate the Last Will and Testament as well as any codicils.
Engage an attorney familiar with probate, such as Olivia Wann Law Office, PLLC.
Obtain the death certificate.
Obtain the addresses and telephone numbers of beneficiaries and heirs at law.

Probate Process

Probate takes place in the county where the decedent last resided or where the decedent owned real estate.

The law office will draft the necessary documents to admit the Last Will and Testament to the probate court. The court will officially appoint the Personal Representative nominated in the will. If there is no will, the documents will be prepared to name an Administrator to handle the estate.

Attorney Notification

Olivia Wann Law Office, PLLC will notify the heirs-at-law and beneficiaries.

The law imposes a “fiduciary duty” on the Personal Representative. This means they must demonstrate the highest degree of honesty, diligence, and good faith. In addition, they must act impartially toward the beneficiaries and creditors of the estate. They must keep accurate and up-to-date records of all financial transactions involving the estate. The Personal Representative may not sell any estate assets. Whether it be to themselves, to any of their business associates, or any of their immediate family members. However, they may do so if all the residuary beneficiaries of the estate consent to the sale in writing. Or unless they obtain approval of the sale from the Chancery Court.

If the Personal Representative anticipates difficulties performing their duties, they should inform the assigned attorney. Do not delay in notifying the law firm of any problems or concerns. This may result in severe consequences.

The Personal Representative must keep the estate’s beneficiaries informed of the estate’s status.

The remainder of this document serves as a checklist of actions normally required to administer the decedent’s estate. A Personal Representative must take of some of these actions. However, other actions can be, and often are, delegated to the attorney for the estate. As well as others, such as accountants, insurance agents, or financial advisors. This checklist will help the Personal Representative understand their duties:

Personal Representative: Notification – at your earliest convenience please notify:

Contact the employer to obtain a final paycheck and any insurance.
The deceased person’s (Decedent) accountant, investment advisors, insurance agent and any other professionals.
Notify the Social Security Administration at (800) 772-1213.
If the Decedent was receiving veterans’ benefits, call (800) 827-1000.
The Defense Enrollment Eligibility Reporting System (DEERS) can be notified by calling (800) 538-9552.
If the veteran is also a retiree, the Defense Finance and Accounting service should be notified by calling the Retiree Casualty Section of the DFAS at (888) 332-7411. You can also file DFAS Form 9221 online using DFAS’s Fast Form Option at
https://www.dfas.mil/retiredmilitary/forms.html.
If the veteran is also a current or retired federal civilian employee, the Office of Personnel Management should be notified by calling (888) 767-6738.
If the veteran was enrolled in a VA-sponsored life insurance policy, call the VA at (800) 669-8477.
If the veteran was also a retiree enrolled in the Servicemember’s Group Life Insurance plan, call the VA at (800) 419-1473.
Notify each of the retirement plans in which the Decedent had an interest.
If no surviving spouse still lives at the Decedent’s residence, file a change of address form with the post office as Personal Representative, indicating where the Decedent’s mail should be sent.
Social Security Payment: Social Security benefits are paid a month behind. Social Security regulations require that a person live an entire month to receive benefits for that month.
The estate is not entitled to keep the prior month’s benefits scheduled to arrive in the next month, even though the person was alive for all but one day of that month. If that prior month’s payment is made because Social Security was not notified promptly of the beneficiary’s death, it will have to be returned. Be aware of these rules in case payment must be returned.

FEIN

The federal tax identification number for the estate will need to be obtained from the IRS. The law firm will obtain this on the Personal Representative’s behalf once they sign the appropriate IRS document. Learn more with our guidance in Probate Services.

ESTATE CHECKING ACCOUNT

Once the estate tax identification number has been obtained, an estate checking account should be opened to receive all estate deposits and pay all estate bills (unless the estate is insolvent).

A detailed record of all estate transactions should be kept. No checks should be written on the estate account unless they are for the proper debts of the Decedent, for taxes owed by the Decedent or the estate, or for funeral or administration expenses.

The Personal Representative can be found personally liable if they prematurely pay or distribute estate assets and it turns out that there are not sufficient funds remaining to pay debts, taxes, or expenses.

The Personal Representative must not mix estate assets with personal assets. To avoid complications, title each asset belonging to the estate that comes into your possession in the name of the estate as follows:

Your Name, Personal Representative of the Estate of ______________

NOTICE TO CREDITORS

A creditor has one year from the death of the Decedent to file a claim against the estate.
This is why it is important for the Personal Representative, or if tasked to the law firm, to notify creditors.

Actual Notice:

Actual notice is required to be sent directly to a creditor. This includes information regarding the commencement of the probate proceedings and the time period within which claims must be filed with the probate court. A creditor may come after the estate within the year if notice is not provided. This can cause many problems, particularly if the estate is closed and the assets have already been distributed to the heirs or beneficiaries.
Published Notice:

Probate Court is required by Tennessee law to publish a notice to creditors of the estate in a local newspaper. This informs them that they must come forward with their claims in order to be paid. Therefore, before the amount owing each credit of the estate can be paid, the creditor must file a claim with the Court. This applies even if you know there is an outstanding bill. Generally, if the creditor does not file the required claim within four (4) months, the creditor cannot enforce payment of the amounts due.

Creditors who file a claim timely (within the 4-months) must be paid if there are assets and there are no exceptions to the claim.

When a claim is received, the Court will send a copy of the claim to the Personal Representative and a copy to the law firm. An exception to the claim may be filed during that 30-day period following the claim filing.

The Personal Representative must make a diligent effort to identify anyone the Decedent owed money. The Personal Representative must review medical bills, credit card statements, bank records, and tax returns. Learn more with our guidance in Probate Services.

The priority of claims is as follows (meaning who gets paid first):

First:

Costs of administration, including but not limited to premiums on the fiduciary bonds and reasonable compensation to the Personal Representative and the Personal Representative’s attorney.
Second:

Reasonable funeral and burial expenses.
Third:

Taxes and assessments imposed by the federal or any state government or subdivision thereof and claims by the Bureau of TennCare (Medicaid).
Fourth:

All other general creditors who filed a timely claim.

If the estate is insolvent, the law office will make the necessary notifications to the Court and direct the Personal Representative on the sale of real estate if real estate is owned by the Decedent.

WILL DISTRIBUTIONS

A Personal Representative has the discretion to make distributions in an estate prior to closing. However, any such distributions should be made thoughtfully and in keeping in mind any anticipated claims of creditors, claims of a spouse (if applicable), or expenses of administration. Making distributions before the close of the 4-month claims period is always risky. The law office will follow the mandatory distributions as listed above before making distributions to beneficiaries.

The Personal Representative is liable for any distributions made that prevent the following of the priority claims listed above or do not follow the Will.

PERSONAL REPRESENTATIVE EXPENSES

The Personal Representative can, of course, reimburse themselves or others if any funeral or similar expenses were advanced before the opening of the estate account.

ASSETS

All “probate assets” (“probate assets” are assets owned solely in the Decedent’s name, that is, not jointly owned assets, and not assets that are payable to a designated person as the beneficiary) should be located, gathered, and brought under the control of the and possession of the Personal Representative. If practical, estate assets such as bank accounts should be re-titled in the estate’s name and under the estate’s tax identification number. Consult previous tax returns to help identify assets.

Real Estate

All the real estate must be located in addition to the Decedent’s home. Search for property deeds, mortgage statements, and insurance policies. Secure the property. It may be necessary to change the locks. Store valuable property such as expensive jewelry, art, and weapons.

The law office will evaluate the Will to determine if the Personal Representative can sell the property. If not, all the beneficiaries must sign the real estate deed if the property is to be sold. If the Decedent died intestate (without a Will), all the legal heirs must sign the deed.

Personal Property: Cars, Boats, Motorcycles and Other Vehicles

Locate the registration and insurance documents to determine if the Decedent owned the vehicles in whole or part. Do not drive the vehicles registered in the Decedent’s name. Vehicles must be retitled and insured.

Small Business

If the Decedent owned a business, the law firm would need to value the business as of the date of death. A CPA performs this. A decision must be made whether to continue the business or to sell it.
If the business is an LLC or another type of entity that has an operating agreement, the agreement will have to be evaluated to determine how to proceed with transferring the decedent’s share.

Mail

Read through the Decedent’s mail and look for bank statements and brokerage statements.

Digital Assets

If the Decedent owned a computer or other electronic device, including a smartphone, determine if there is a password list with the Decedent’s valuable papers. Make a complete backup of the hard drive. The Personal Representative may use an external hard drive or flash drive. There may be very important financial information stored on the device. Additionally, there may be photos important to the family members.

VALUE OF ESTATE

If the Decedent had a Will, an inventory may have been waived, or all the beneficiaries/ heirs at law may consent to waiving a formal inventory.

It is important to identify the assets and calculate the value of the estate. A list of all the Decedent’s assets (including account or policy numbers, if applicable) and showing the fair market values of these assets as of the Decedent’s date of death needs to be created. This would include any bank accounts, certificates of deposit, real estate, stocks, bonds, mutual funds, and other securities, pensions, annuities and other retirement assets, life insurance, automobiles, and other property of any nature. Whether owned solely in the Decedent’s name, jointly with another person, or payable to a designated beneficiary. Some assets may need to be formally appraised.

Discuss any appropriate issues regarding their valuation and/or administration with the law office prior to engaging a CPA.

SAFE DEPOSIT BOX

If the Decedent had a safe deposit box and the bank prepared an inventory of the box, the law office would need a copy of that inventory. Learn more with our guidance in Probate Services.

LIFE INSURANCE

Any life insurance payable on the Decedent’s life must be applied for by the beneficiary of each policy. The law office can assist the Personal Representative in filing claims on any life insurance policies. The beneficiary should request a Form 712 from the insurance company for each life insurance policy. A Form 712 is an official form from the insurance company showing the exact death benefit amount or other insurance proceeds.

UNCLAIMED LIFE INSURANCE BENEFITS

The Tennessee Department of Commerce and Insurance (TDCI) addresses the issue of unclaimed life insurance benefits in the state to take advantage of the National Association of Insurance Commissioner’s Life Insurance Policy Locator. This enables beneficiaries, executors, or legal representatives of a deceased person to track down the life insurance policies or annuity contracts of their family and friends who have passed away.

GIFTS

If the Decedent made any gifts during his or her life that were over the annual exemption amount to any person during any single year, information needs to be gathered. This includes details concerning the date(s) of the gift(s), the name(s) of the recipient(s) of the gift(s) and the amount(s) of the gift(s). If the Decedent ever filed any federal and/or gift tax returns, copies of these returns will need to be gathered.

CREDIT CARDS

If the Decedent had any credit cards, those credit cards will need to be canceled, and each credit card company should be notified of the Decedent’s death. The law firm may be able to negotiate a lower settlement payment.

TN INHERITANCE TAX

Tennessee inheritance tax does not apply to individuals who died after December 31, 2015.

FEDERAL INHERITANCE TAX

A federal estate tax return is also due nine months from the date of death if the entire estate exceeds $12,060,000 (year 2022) for a single person. If you die in 2022, the federal government will not tax your estate on the first $12,060,000 you pass on. Learn more with our guidance in Probate Services.

DISCLAIMER OF ASSETS

Any decision regarding the disclaimer of assets by any beneficiary must be signed and filed by the date that is nine (9) months from the date of death. For a disclaimer to be valid, the recipient cannot receive the assets he or she chooses to disclaim, so we need to discuss the issues concerning disclaimers as early as possible.

FEDERAL INCOME TAX RETURN

The federal income tax return (Form 1040) and Tennessee income tax return, which will probably be a joint return with the Decedent’s spouse, if the Decedent was married, for the final year of the Decedent’s life needs to be filed. THIS INDIVIDUAL FEDERAL INCOME TAX DEADLINE IS APRIL 15th. At such time as the final income tax returns for the Decedent are filed, the law office will need copies. The Personal Representative is responsible to make an appointment with a CPA or bookkeeper to prepare these returns.

It may be necessary for a fiduciary income tax return (Form 1041) to be filed for the estate if the probate assets produce interest, dividends, rents or other income while the estate is open, but this can be determined later. This is another reason why it is essential to maintain complete and accurate records of all financial transactions regarding the estate.

BOND

If there is no Will or if the Will did not waive the need to have a bond, the Personal Representative may be required to purchase a bond in handling their duties. The law office will provide you with instructions. Bond can be waived if all beneficiaries or heirs at law consent to the Personal Representative serving without bond. Learn more with our guidance in Probate Services.

LETTERS

The Personal Representative will take their Oath to properly perform their duties as the Personal Representative of this estate to the best of their ability. The Clerk’s Office will issue either Letters Testamentary or Letters of Administration. The Personal Representative will need these letters to open the estate bank account and to handle their duties as the representative of the estate.

CLOSING THE ESTATE

The law firm will close the estate once the creditors are paid and the assets are distributed.
The attorney will file the remainder of the paperwork with the Court and then Personal Representative’s duties will be completed.

Definitions

Probate:

Probate defines the process of administering the decedent’s estate whether he or she had a Will or not.
Decedent:

The deceased person.
Executor / Executrix:

The personal representative of the estate is entrusted with the responsibility of making sure the decedent’s wishes, as outlined in the Last Will and Testament, are granted with regard to the disposition of their property, including real estate and personal property. The personal representative ensures that debts are paid and property is distributed according to their wishes.
Beneficiaries:

Persons inheriting through the Will. Such persons may or may not be related to the decedent. Beneficiaries are identified in the petition.
Administrator / Administratrix:

The personal representative of the estate appointed by the Court to administer the estate. In this case, the decedent died “intestate” without a Will. The estate shall be divided by statute. The personal representative ensures that debts are paid and property is distributed according to statute.
Testate:

A legal term indicating that the decedent died leaving a Will.
Intestate:

A legal term indicating that the decedent died without a Will.
Testator / Testatrix:

Term used for the person writing a will. The testator is male, and the testatrix is female.

You’re the Executor of an estate? Now what?

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