Frequently Asked Questions

Q: Do I need an attorney to probate an estate in Tennessee?

A: It is advisable that you hire an attorney to probate your estate in Tennessee. With a number of complicated procedures, it is important to have an attorney who has the knowledge and experience with Tennessee probate law. Many of these statutes have strict deadlines that must be met to follow proper probate law procedure. Some counties, including Davidson County require that all filings by fiduciaries must be done so by licensed attorneys under local rules.

Q: Where should I file a petition to probate a will for a deceased Tennessee resident?

A: Typically, the petition to probate a will is filed in the county where the deceased resided at the time of his death. If the deceased resided in more than one county, you may file the petition to probate in any of the counties where the deceased resided.

Q: Do all of the assets have to go through the probate process?

A: No, certain types of assets do not have to go through the probate process. Usually, only those assets that are in the sole name of the decedent must go through probate.

Q: So, what assets are exempt from the probate process?

A: Assets that do not have to go through probate may include:

  • Any property that was held in joint tenancy
  • Any property that was held in tenancy by the entirety
  • Payable-on-death bank accounts
  • Life insurance proceeds
  • Assets that are registered in a transfer-on-death form
  • Retirement accounts
  • Assets in a living trust

Q: What happens if you die without a will in Tennessee?

A: Dying without a will in Tennessee is known as dying “intestate.” There are certain state statutes that determine where the assets are distributed when you die intestate. In other words, the state determines who gets what based on the relationships defined by the law. The state also can determine who becomes the guardian of your children if there is not another parent. The state can also determine who becomes the administrator of your estate. It is important to create a will so that you rather than the state can determine who should get what.

Q: What are the benefits of creating a will?

A: There are a number of benefits to creating a will. A will ensures that you determine where your assets go after your death based on need and preference rather than a relationship defined by the state. In addition, you are able to name a legal guardian for your children in your will. Also, having a will reduces the likelihood of any possible disputes with any family members that can arise in determining who gets what assets.

Q: Who can make a will in Tennessee?

A: Any person of “sound mind” 18 years of age or older may make a will. Sound mind means that the person is capable of reasoning and making decisions.

Q: Are there different types of wills in Tennessee?

A: Yes, Tennessee law provides for three different kinds of wills. The most common will is the attested will which a Tennessee wills attorney can provide. It requires the signature of the person making the will and two witnesses. Another type of will is the holographic will, which is must have all of the material portions in handwriting. The person writing it also must sign this will. The third type of will is very rare and completely oral. Known as a nuncupative will, it must be spoken when the person making the will is in imminent peril and dies from that peril. It only provides for up to $1,000 of personal property.

Q: Who may file a petition for conservatorship in Tennessee?

A: Anyone who has knowledge of the circumstances requiring the appointment of a conservator can petition the court for one. The court only requires the petitioner have knowledge of the situation.

Be sure to contact The Higgins Firm Estate Group with any of your wills, probate, or conservatorship questions. Our Nashville attorneys would be happy to help you