Probate is the name for the legal process of distributing assets after someone passes away. These assets can include bank accounts, real estate, vehicles, retirement accounts, life insurance, and financial investments. Before the assets can be distributed, however, they must first be gathered and used to pay creditors.
After that, the heirs can finally receive their distribution of the estate. However, even then, there are several factors that can still delay the distribution process. In our practice, it is common for probate to last about nine months. In more complex cases, probate can easily last several more months or even years. These delays ultimately mean less money and more headache for the surviving family.
Let’s go through the factors that cause delays in probate, and discuss what steps can be taken to minimize the delay.
1. Passing away without an Estate Plan
If you pass away without an estate plan, your loved ones will have to go to probate court. The court will appoint someone among them to be the “Personal Representative.” The Personal Representative will be responsible for contacting all of the financial institutions about your death. They will also be responsible for using your funds to pay creditors and ultimately make distributions to your heirs.
When there is no estate plan, the process for appointing a Personal Representative can be seriously delayed. The family will have to come to a consensus on who the Personal Representative will be before they present their choice to the court. Moreover, whoever is selected as Personal Representative is often not prepared for the role, as they had not been told to expect it. The process of going through all of your finances and contacting all of your financial institutions might be overwhelming for them, especially if they did not know your finances very well. Moreover, they will be responsible for mediating tension between the family, which is made even more difficult if members of the family do not think you explicitly wanted them to serve as Personal Representative.
Having an estate plan would minimize all of these consequences and delays. By having an estate plan, your family will already know who you want to represent your estate, which will make the process for appointing a representative much smoother. The person you select to represent your estate will also be better prepared for the role, as they are aware that they will one day need to fulfill the role.
The best way to minimize delays in probate is thus to have a clear estate plan in place, and to let your family and loved ones know about your intentions.
2. Family Tension
Even with an estate plan, family dynamics can still play a major role in probate. For example, if the only major asset that you have at the time of your death is your house, and one of your heirs would like to live in it while the other heirs would rather sell it and keep the sale value, tension will ensue and attorneys may need to get involved. All of this will ultimately lead to a delay of the probate process, and may ultimately divide the family in an irreparable way.
Feuds such as the one described happen even in the most loving of families. To avoid these feuds, it is important to not only have an estate plan, but to have one drafted by an experienced estate planning attorney. An experienced estate planning attorney will be familiar with cases such as the one described and will be able to help you think through exactly what you would want to happen if these cases occur. Your estate plan will thus be better able to help your family navigate your precise wishes for your assets, ultimately easing tension and expediting the probate process.
Hiring an estate planning attorney to draft your estate plan is one of the most important steps you can take to minimize probate delays.
3. Financial Complications
If you keep your finances private, it will be difficult for your intended heirs to know what to expect after you pass away. They may not even know where you bank and what financial investments you have. The more difficult it is for them to know your finances, the more difficult it will be for them to notify your financial institutions of your death and gather accounts.
Furthermore, if you are in debt or are not paying your taxes, your Personal Representative will be responsible for using your assets to pay your creditors and the IRS. This can cause serious delays to the probate process, especially if the Personal Representative was unaware. Creditors will ensure they receive their payments by filing claims against the estate through probate court. These claims ultimately slow down the probate process as each claim requires a hearing before a judge.
To save your family time, headache, and grief after your death, it is important that you keep your finances in order. Pay off debt when you can, and keep a clear record of it. File your yearly taxes appropriately. Let your loved ones (especially your Personal Representative) know of your finances and how to contact each financial institution in case something happens.
Even in the best of cases, probate takes a while. To minimize delays, we recommend having an experienced estate planning attorney draft your estate plan, clearly telling your loved ones of your intentions, and keeping your finances in order as much as possible. Your loved ones will already be filled with grief after your death. The best gift you can give them is preparation.
Here at Graceful Aging Legal Services, we offer software that can help our clients keep their estate in order. Contact us at 615-846-6201 or hello@galsnashville.com if interested.
If you’re closely related to someone who has recently passed away, it’s likely that you’ll be in line to inherit at least a part of their estate. It can be a complicated process, depending on the circumstances. To make this process easier for you, we’ve outlined some things you need to know as a potential inheritor of a Tennessee estate.
1. Take the time to grieve
If you’ve just lost a loved one, the first thing you need to do is take the time to grieve. This could be overwhelming, especially if you were close to the person who has passed away. You may not even know how to react if you’ve been left a large inheritance. Taking the time to grieve the death of a loved one is important, and you should not be pressured into making decisions. Also, don’t rush through any of the legal processes outlined in this article. There’s no need to hurry to open an estate, and you should make sure that you’re given enough time to make well-thought-out decisions and take care of things properly. All of the necessary information will be available to you once you are ready.
2. Take the time to understand the terms of the will
Another important thing to do is take the time to understand the terms of the will. If there was a will, then you’ll need to know who was named as the executor (aka personal representative) of the estate. You’ll also need to know whether there are any special provisions in the will, like leaving a specific piece of property to a specific person. You’ll want to know where the original will is being kept, as well as the executor’s contact information so you can stay informed about the progress of the estate.
Once the will is probated, there will be a record of it that you can access at any time. You’ll be able to see the contents of the will, as well as the names of everyone who was named as a beneficiary. This is something that you’ll need to keep in mind when communicating with the people who were named in the will.
3. Find out if there is any debt included with your share of the inheritance
Debt follows the person who incurred it, so a person’s debt usually belongs to their estate- not those inheriting from them. However, if your loved one left you anything with a debt tied to it, you may have to figure out how to resolve the debt before accepting the inheritance.
This includes things like car loans, mortgages, or other debts that your loved one may have had when they passed away. Even if you inherit something with debt tied to it, you do not have to inherit debt. You can choose not to accept the item or to sell it and take whatever it is worth after the debt is paid.
It’s important that you know if there is any debt included with your inheritance so that you can plan accordingly. It’s possible that you could get a loan to cover the cost of the debt and then pay it off gradually over time.
In my personal and professional opinion, it usually makes sense to take over a loan on something that will appreciate, such as real estate, but not on any depreciating assets like a vehicle. However, this is something that will have to be decided in consideration of your personal situation.
4. Find out what happens during the probate process
The probate process is the process of opening a probate estate, gathering all assets owned, and distributing the assets from the estate. During the probate process, the executor of the estate will file the will and any other documents that might be necessary with the court and has the responsibility of distributing the assets according to the terms of the will. These documents will become part of the public record. The executor of the estate will open an estate account with the court, and you can check in on it and see what progress is being made as the assets are distributed.
5. Check for Inherited IRA Rules and Taxes
If you inherit retirement accounts from a loved one, you will need to make a decision about how and when to cash out the account.
While spouses can easily “roll” retirement accounts to the surviving spouse, this is not an option for anyone else. As the non-spouse beneficiary of a retirement account, you have two options: (1) take all money out immediately or (2) you can “stretch” the distributions up to ten years.
Because most retirement accounts are “tax deferred” accounts, you will want to explore the tax consequences of any retirement investment accounts that you inherit. If your family member invested into a 401k, IRA, or similar type of account, they did not pay taxes when contributing to their retirement. That means that taxes must be paid when the money is taken out.
The financial institution will usually help you by holding an estimated tax payment but you will still want to make sure you are aware of what you will need to pay at tax time to account for those inheritances, no matter how you took the distribution.
6. Allow time for the Executor to carry out their duties
As soon as you’re named as a beneficiary to a will and the estate has been opened through probate, you can expect that the Executor will begin to take care of things, such as contacting creditors and making arrangements for the sale of any real estate. It’s important that you give them some time to do what they need to do. Expect that it will take about a year for the entire process to run its course. This is a rough estimate and will vary depending on how complicated the estate is, how many assets there are, if any estate tax is due, and whether there are any potential disputes. The Executor will keep you updated on progress and let you know when you can expect to receive the inheritance.
7. Communicate with the Executor
Keep in regular communication with the Executor of the estate. Ask if there is anything you need to do or can do to help. If you have questions, make sure that you ask the Executor and get the answers that you need to the point you understand. You can also ask to speak with the attorney for the estate. If you are having issues with the Executor getting back to you, or you suspect there are difficulties, it may be worth consulting a lawyer on your own.
8. Decide how you want to handle your share
Before you get a check, decide how you want to spend any money that you receive. Maybe you and your deceased loved one had already talked through what they hoped would happen with any funds they left you. Many people have a financial goal that their inheritance will help them reach, such as buying a house or investing in their own retirement. Some families use the money to take a trip together and make memories. Having a plan is the best way to make sure that your loved one’s legacy is honored.
9. Update your Plan
One of the most important things to consider is that receiving an inheritance could cause your own estate planning to need to be updated or revised. If you are currently the beneficiary of a trust or other estate planning document, you should contact your estate planning attorney to determine whether or not you need to make any updates.
If you are looking for a Middle Tennessee probate attorney or to create a Tennessee will, click here to schedule an initial call with us.
Probate is the legal process of transferring some of a deceased person’s assets to their heirs. Once you or someone you love passes away, there may be questions about what specific assets and property within an estate actually have to go through probate court, and which assets pass directly to beneficiaries. The short answer is that only assets that a person owned that were in their own name, alone, must go through probate.
The Probate Estate
Assets that go through probate make up what’s called the “probate estate.” For example, an individually owned bank account with no named beneficiary or a car titled only in an individual person’s name will pass through probate.
All other assets pass to the named beneficiaries without going through the probate court.
So, what are some specific things that do not pass through probate?
Here are a few examples:
Property held in joint tenancy with a right of survivorship
Any assets or real property held in joint tenancy (with a right of survivorship specified in the deed) by the deceased and one or more other people doesn’t need to go through probate. When one owner dies, the survivor(s) automatically owns the property.
Property held in tenancy by the entirety
If the deceased individual owned real estate with their spouse in tenancy by the entirety, the surviving spouse is automatically the sole owner when the other spouse passes away.
Payable-on-death bank accounts
A payable-on-death bank account is an account that passes to the beneficiary at the death of the account holder, therefore it does not pass through probate. Check with your bank to see whether your bank account(s) have payable-on-death beneficiaries.
Assets registered in transfer-on-death form
Tennessee residents can name transfer-on-death beneficiaries for securities. Assets registered in the transfer-on-death form pass directly to the named beneficiary without needing to go through probate.
Life insurance proceeds
When life insurance policies or annuities specify a beneficiary, the proceeds do not go through probate.
Retirement accounts
The funds in retirement accounts do not go through probate if the account holder designated a beneficiary.
Trust assets
Assets held inside a Trust by a Trustee do not go through probate.
Probate doesn’t have to be complicated
Learn how to prepare for and navigate probate
Overall, knowing which your assets must pass through probate, and which do not pass through probate, can save you a lot of unnecessary stress and confusion. Designating probate vs. non-probate assets is an important part of your overall estate plan strategy. It is important to take the time to talk to an attorney in order to identify your assets, decide who your beneficiaries should be, and determine what the best method is for those beneficiaries to receive their share.
We invite you to participate in our “Estate Planning Challenge,” which is a daily email campaign where you can identify all of the people, assets, and decision-makers that you will need to consider before meeting with an attorney to further discuss your estate plan.
Dying without a will is unfortunately very common. If you die without a will, your property will likely go through a court process called probate and will ultimately be distributed according to Tennessee’s intestacy law. Here are some common events that may happen if you die intestate:
Your immediate next of kin, whoever they are, will likely inherit your property first. If you die intestate, everything goes to your next of kin. Your next of kin are the people who have the closest relation to you. Your children are first in line, along with your spouse if you are married at the time of your death. Otherwise, it’s your closest relatives. For example, say you die intestate without a spouse, children, or parents. Your next of kin could be your much younger half-sister or a cousin you’ve never met. Whoever fits the “closest living relative(s)” criteria will inherit everything after the estate pays your debts and taxes.
That son- or daughter-in-law you don’t like will get your property before that niece or nephew you do like. Marital property owned by your children is governed by the laws of the states they live in, not you. If they live in a communal property state, they’re sharing the inheritance, 50/50. While the laws are different in every state, property acquired during marriage by either spouse may be marital property, especially if it was used for the benefit of both spouses.
A little bit of money up for grabs can have a cooling effect on interfamilial relationships. In a perfect world, family members would all get along, never be jealous, and always do right by each other. This isn’t a perfect world. Intestacy law doesn’t take into account the relationships the deceased had with anyone or what the deceased orally promised to someone. Even if widowed Uncle Bob told you he wanted you to have his ’65 Thunderbird, without a will, the car is going to his son…who doesn’t even have a driver’s license. When families start fighting over estates, lawyers get a lot of money and the family gets a lot of heartaches, so it’s best to put your wishes in writing so everyone knows what is expected in advance and the Court has authority to enforce your wishes.
If you’ve recently lost a loved one who did not have a will and have questions about their estate’s administration, you should speak to a probate attorney for guidance. If you need assistance, we invite you to contact us to schedule a consultation.
Many people think that if they are married, their spouse will automatically inherit everything when they pass and so they don’t need a will. While there are some situations where a spouse does inherit everything, it is not the default under Tennessee law. In Tennessee, if you are married and have children, your spouse will share your probate estate with your children. I call this the S.A.K.S. method (Spouse and Kids Share). In other words, your spouse does not inherit everything automatically.
To clarify:
If you die without a will, Tennessee law dictates that the spouse and children split the estate.
However, I believe that everyone should create their own plan for distributing their assets after death, even if the state has an understandable default on how to do this. Here’s why:
Having a Will can make it easier for your family to go through probate.
Having a Last Will and Testament can be an important way to reduce any burden on your family after your death. In your Will, you decide not only who will inherit your estate but also key decisions like who will serve as Personal Representative (also known as the Executor) and whether you want to require or waive documents that are required by statutes. Having a Will is your chance to have a say in the probate of your estate before you die. The process can be much less complicated for your beneficiaries as well because you may decide to be even more specific about some of the more difficult decisions that need to be made.
It is much easier on your family if you have an estate plan in place. A last will and testament will provide instructions on how to designate and divide assets between family members and friends. If you die intestate (without a will), then the state’s inheritance laws will determine who gets what.
Preparing an estate plan will cover situations that may arise after your passing
Have you considered what might happen if your spouse remarries? Are you aware that a future spouse can take an interest in a portion of your estate? Would you want part of your assets to go to a new spouse or to any children that they may have with that spouse? Do you have family or children that should benefit instead? There are many other factors to consider, but it’s important to discuss these things with your attorney when you create your estate plan.
A Will provides security for your spouse
If you are more concerned about your spouse inheriting from you than your children, you can plan for that too! The general rule in Tennessee is that the spouse would get no less than a third of the estate.
For example, if you are splitting the estate with two or more children, the spouse would get a third. If there is only one child, the spouse would get half.
What if you want to provide more? With a Will, you can designate that your spouse gets everything or only leave certain things to your children. Many spouses write “I love you” wills, where they inherit first from each other, and then their children only inherit when the second parent dies.
Use a Will to protect spousal inheritance from changes in family dynamics
Another consideration in making a Will is your family dynamic. Do you have children from different relationships throughout your life? Do you have concerns about how your children from those relationships will get along with your current spouse when it comes to your estate? It is important to consider how you want inheritances to be split. Your Will can dictate how your assets will be handled! You can also designate your preference for the guardian of any minor children in the event that both you and the other parent die.
Additionally, a Will provides provisions such as the appropriate age at which your children should take over responsibility for managing any inheritance. One primary concern many parents have is whether young adults will be mature enough to make sound judgments concerning any money they inherit. Your Will can establish a certain age at which young adults gain control of their inheritance, to ensure that it isn’t squandered when you would prefer it be used towards education or sound investments.
In short, your Last Will and Testament should be drafted so that your wishes regarding your family are honored.
A Will can safeguard your beneficiaries if they become disabled
Are any of your assets expected to go to a loved one who has a chronic medical condition? If so, you’ll want to consider that an inheritance could disqualify them from any means-tested government benefits that they may receive or be entitled to, which could be devastating if they are counting on that benefit. The most common examples of this are Supplemental Security Income (SSI) and TennCare (Medicaid). You’ll want to have a contingency plan in your estate plan to make sure that their benefits are secure and not at risk of being cut off due to an inheritance. You don’t want their government assistance to decrease just because you died! You definitely need a plan for that. Make sure to work with a qualified estate planning attorney so you can refrain from making errors with your family’s benefits.
If you want control over who can access your digital assets, you must make a Will
Many digital assets are governed by terms and conditions which are unlikely to specify who will take over your accounts when you die. Some providers, such as Facebook, permit you to designate someone as a “legacy contact.” However, not all companies are robust enough to provide this type of service. A Will protects your digital assets from falling into the wrong hands or being lost in digital space with no one able to claim them. Check out our blog post about how to create or change your Facebook “legacy contact” here.
In conclusion
These are just a few of the things that you’ll want to consider when making an estate plan. I want to encourage you to have a long discussion with your spouse about how your assets should be split when one of you dies. There shouldn’t be any surprises! I cannot stress the importance of knowing each other’s values and putting them in writing. It is crucial to have the outcome you desire. A failure to plan can end up in expensive court litigation. This is why we encourage everyone to speak with an experienced estate planning attorney about how they and their spouse can protect each other through proactive planning.
Are you ready to make your Will? Schedule a free initial call and make your plan with the Team at GALS!
TennCare will use estate recovery on TennCare payments for long-term care.
Long-term medical care is expensive – but where does the money come from?
This week I want to talk about TennCare Estate Recovery. Over the last few blog posts, we have gone over the benefits available to those who qualify medically and financially for TennCare Choices, Tennessee’s long-term care Medicaid program. We have also discussed how we can help our clients adjust their finances so that they can qualify. This week we want to discuss how TennCare recoups the cost of providing long-term care services.
TennCare rules can be confusing
A long time ago, my friend told me that her grandmother had to give away her house because she could not afford to pay for medical care and needed to qualify for Medicaid. This is really unfortunate! Her grandmother clearly didn’t understand the rules of Medicaid. Unfortunately, people like my friend’s grandmother get bad information about Medicaid, the services that are available, and the requirements to become eligible. I wish I could have told my friend’s Grandmother that she could have kept her house. This leads me to my main point…
TennCare will not take your house while you are living in it.
However, TennCare estate recovery allows TennCare to get reimbursed for any funds that they spent on behalf of someone after that person dies. In other words, the state will eventually try to get reimbursed for the money they spent on your long-term care.
According to current TennCare rules, a single person can own a house that is worth up to $603,000, or land with a house worth over $603,000, without any concern about being ineligible for TennCare due to their home. However, you will want to talk to your attorney and financial advisor about how you may be able to continue to pay the costs of maintaining a home if you are in skilled nursing care.
How and when does TennCare get reimbursed for your long-term care?
For most of us, TennCare is not going to take your home even if you are living in a facility. Concern about your real estate should arise if you were hoping to pass your real estate to your family when you die. While TennCare will not try to get repaid for their expenditures during your lifetime, they will seek reimbursement after you pass away.
For example…
Roberta has a home worth $250,000 and no other assets. She was in a skilled nursing facility for two years and received TennCare services for which they paid $125,000. After Roberta passes away, her estate will be expected to pay $125,000 back to TennCare before the family receives any money. Since there is a house worth $250,000, the family would be expected to sell that house and give half the proceeds to the state. This process is called estate recovery.
Work with a probate attorney to resolve an estate recovery claim.
Is there any way we can keep the house in the family?
Estate recovery is something that TennCare takes seriously, and will go to great lengths to make sure that they are properly reimbursed. However, they will not take your home while you are living in it.
I want to be clear: A loved one receiving TennCare benefits while alive does not mean that Tennessee will later attempt to collect the money from YOU. The debt is not yours. If you have a loved one who passes away while on TennCare, your probate attorney will work with you to resolve that estate recovery claim so that TennCare can get reimbursed for any funds they spent on behalf of the deceased.
You can find more information through the Estate Recovery division here.
If you have a family member that was on TennCare or needs to get on TennCare, contact us at 615-846-6201. We’re here to help!
