What is Probate?
In a letter to Jean-Baptiste Leroy in 1789, the great American statesman Benjamin Franklin once stated that “In this world nothing can be said to be certain, except death and taxes.” In many ways, death and taxes are among the most important components of the area of law known as probate.
Although probate is often a complex matter, it can probably be best simplified as follows. Basically, probate is the legal process that takes place after someone dies. It included, but is not limited to, the following:
1. Providing to the court a copy of the deceased person’s will and proving it is valid. This is usually a routine matter, unless someone challenges the validity of the will. If the deceased person died and left no will, however, then Tennessee law determines who stands to inherit the deceased person’s property. Therefore, the court will need to know the identity of all the possible heirs in order to properly divide the property.
2. Identifying and inventorying the deceased person’s property. The person in charge of this is known as the administrator. He or she can be named in the deceased person’s will or appointed by the court. The administrator’s role is very important, as he or she is responsible for the estate until everything is settled.
3. Appraising the deceased person’s property. This step is important as well. In this process, all known assets belonging to the deceased person must be made known to the court and their value properly analyzed. Also, any outstanding debts and loans need to be made known to the court, if the creditors wish to be paid from the assets of the estate.
4. Paying debts and taxes. Yes, the dreaded “T” word again. Even in death, we cannot avoid taxes. In this process, the assets of the deceased person are used to pay off any outstanding debts or to pay taxes.
5. Finally, any remaining property left over from the estate is distributed among the heirs as named in the will or, if no will exists, then as the law requires.
Of course, the above description is a pretty simplified version of the probate process, and it can become more complicated if there is disagreement as to how the estate should be divided.
Why is it so important to have a will in place when you die?
There are many important reasons why you should have a will in place, even if you are relatively healthy. For one thing, a will is, in a very real sense, your last message to your loved ones. Perhaps you wish to leave a valued keepsake to your child and don’t want to run the risk of it being liquidated with the rest of the estate to pay off your creditors. Perhaps you want to leave something to a treasured friend so that he or she can remember the good times, or perhaps you wish to a certain amount of money in trust so that your children can go to college.
But what if you are married, and you wish to leave everything to your spouse when you die? This is certainly allowable. However, what should happen if you both die at the same time? Who would be in charge of the estate then? And what happens if you leave children behind? Who will look after them? And what if one or both of you have children from a previous marriage? Do these children stand to inherit anything?
These are important questions, and should be carefully considered before you decide to have a will made or not.
Do I have to have a will?
No. You do not have to have a will written up. As discussed earlier, there are laws in place to distribute your property if you should die without a will. However, as an attorney, I believe in the importance of a will, as its benefits of a carefully thought-out will can alleviate the pain and stress that can follow after your death. These benefits are:
1. Your family will not have to go through the grief and uncertainty by asking themselves how you would have wanted your property distributed. By writing it out for them in advance, you make it easier for them.
2. A will allows you to put someone in place as the administrator who can make sure that your wishes are followed after your death. Or, if the administrator that you picked out is unable to fulfill his or her duties (an example would be if you named your spouse as the administrator of your estate, but your spouse ends up dying before you do), then a will allows you to name someone else to be the administrator if the first person is unable to fulfill the role.
3. A will is, as stated above, a last way to say goodbye to those you care about and to leave them something to remember you by.
4. Finally, and most importantly, a properly written will can make the process of probate go by more quickly and be less costly in the long run. If various people come forward to challenge how the deceased person’s estate is to be divided, then the estate can end up in probate for years, and money is needlessly wasted on attorney fees and other legal costs.
Why should you consider me when you are thinking about writing a will?
As an attorney, I have seen many families torn apart following the death of a loved one because they were unable to come to an agreement on how to divide the loved one’s estate. I help my clients by helping them to address the difficult questions that they might be afraid to discuss with their loved ones, as well as shed light on issues that they may not have been aware of before. A classic example will be if a husband left everything to his wife upon his death, but he also had children outside the marriage. Do these children inherit anything? And if so, what portion of the estate do they get?
If I am retained by you to draw up a will on your behalf, I will help you consider these questions and more. I tend to be very detailed-oriented, and can assist you with these difficult questions.
But above all, I wish to serve you by ensuring that when death eventually does come (and like taxes, it is unavoidable), your loved ones will be able to treasure the good times you shared with them instead of being needlessly weighed down by familial fighting and legal fees.