Probate

What is probate?

The word, “probate,” literally means to prove. The phrase, “probate the will,” generally means to file and present a last will and testament to the court. Some counties in Tennessee have a dedicated Probate Court and in others probate matters are handled by the Chancery Court. In a few counties the General Sessions Court has probate jurisdiction.

James K. Polk Home – Gardens

More generally probate refers to the process of administering the property (i.e. the estate) of someone who has died (the “decedent.”). Although probate technically only refers to estates in which the decedent had a last will and testament, the word is commonly used and accepted also for estates where there is no will.

We have extensive experience in all aspects of the probate process in Tennessee.  The process, generally, includes collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, and distribution of property to heirs.

How much does probate cost?

The overall cost for a decedent’s estate to be administered of course depends upon the complexity of the property; the number of heirs; the number and nature of claims against the estate; and the size of the estate. Routine and simple estates can cost as little as $2000 to $2500.

The court costs (fees paid to the clerk) are presently $382.50. This is required to be paid when the estate is started (and can be reimbursed from the decedent’s funds).

Small routine estates in which the family members are on good terms and with no contested claims by creditors generally cost from $1,500.00 to $2,000.00 for attorney fees. Larger or more complicated estates can involve much higher attorney fees and additional professional costs such as accountants or appraisers.

We charge for probate matters at an hourly rate of $250.00. You will receive an itemization of the time and activity by the attorney. Attorney fees paid from the estate are subject to approval by the court. The heirs or beneficiaries have the right to object to the fees requested. If there is an objection to the amount of the fee requested, then the judge will decide.

Is probate really necessary?

Most of the time yes but sometimes no. If the deceased person only owned property or had funds jointly with another person, so that everything passed by right of survivorship, the probate of a will or administration of an estate may not be necessary. For example if a husband dies with his wife surviving him with their home titled jointly and all of their accounts set up jointly, probate may perhaps be safely avoided. However, an attorney should be consulted. Even when everything is jointly owned, there may be complications that would require an estate. We generally do not charge for the first office conference lasting up to one half hour to determine whether probate is necessary.

Do I have to have a lawyer to probate?

A lawyer is not required to probate in our local courts. However, unless you are experienced in estates or other legal proceedings, you are risking unnecessary complications, delays, and liabilities in attempting to do so.
How long does probate take?

An estate of a decedent typically will take about 5 or 6 months from start to finish. Complicated estates of course can remain open much longer. It depends upon the nature and extent of the property or business interests as well as the simplicity or complexity of the estate plan set forth in the will. The estates for Elvis and Michael Jackson will likely be open for years and years.

In Tennessee creditors generally have a minimum of four (4) months within which to file claims, so the estate / probate process will take a minimum of four (4) months.

James K. Polk Home – Gardens

Who does the attorney for the estate represent?

We find that even lawyers sometimes misunderstand this important question. Technically, there is no such thing as an “attorney for the estate.” The attorney represents the executor or administrator in their capacity as representative of the estate. The attorney for the executor / administrator does not represent the beneficiaries.

In many situations a dispute or conflict can arise between the estate representative and a beneficiary or between beneficiaries. In these situations the individuals may be required to retain their own attorneys to represent them.

Related Resources

Probate – Frequently Asked Questions, Powers of Attorney, Elder Law, Conservatorships