Probate Services

When someone you love dies, there is grief, sadness, confusion, and possibly stress. If you have been named as an executor in someone’s Will, you must petition the court to give you 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:

Personal Representative

Notification Duties

Once you receive your Letters of Testamentary, we suggest you complete the following tasks as soon as possible:

1. Contact the decedent’s accountant, investment advisors, insurance agent, and any other professionals.
2. Notify the Social Security Administration at (800) 772-1213. If your loved one was receiving veterans’ benefits, call (800) 827-1000.
3. Notify each of the retirement plans in which your deceased family member had an interest.
4. If no surviving spouse still lives at your loved one’s residence, you must file a change of address form with the post office as a personal representative, indicating where the decedent’s mail should be sent.
5. Secure the assets.

Information for Personal Representatives

As a personal representative, the law imposes on you a “fiduciary duty”, which means that you must demonstrate the highest degree of honesty, diligence and good faith, and must act impartially, toward the beneficiaries and creditors of the estate. You must keep accurate and up to date records of all financial transactions involving the estate. You may not sell any estate assets to yourself, to any of your business associates, or to any of your immediate family members unless all the residuary beneficiaries of the estate consent to the sale in writing or unless you obtain approval of the sale from the Chancery Court.

As a personal representative, you have a duty to keep the beneficiaries of the estate informed as to the status of the estate.

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 maintained. 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.

We do not recommend using a debit card or credit card. We prefer paper checks with a banking institution that provides an image of both sides of the check. If there is any question whether there will be adequate funds to pay everything, please discuss this issue with your attorney before paying any debts or expenses, because as personal representative you can be found personally liable if you prematurely paid or distributed estate assets and it turns out that there are not sufficient funds remaining to pay debts, taxes or expenses.

You must not mix estate assets with your 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

DISTRIBUTIONS IN THE WILL

A personal representative certainly has the discretion to make distributions in an estate prior to closing. However, any such distributions should be made keeping in mind any anticipated claims of creditors, claims of a spouse (if applicable), or expenses of administration. Making distributions prior to the close of the 4-month claims period is always risky. We must follow the mandatory distributions as listed above prior to making distributions to beneficiaries.

YOUR EXPENSES

You can, of course, reimburse yourself or others if any funeral or similar expenses were advanced prior to the opening of the estate account. If the Will waived compensating you for services, you will not be paid for your time as a personal representative.

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 your control and possession. If practical, estate assets should be re-titled in the name of the estate 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 (real estate in other states, vacation home, etc.). 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 and art.

The attorney will evaluate the Will to determine if the Personal Representative has the authority to sell the property. If not, all the beneficiaries must sign the deed. 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 in part. The surviving spouse, if applicable, must have the vehicle re-registered in his/her name.

Small Business: If the decedent owned a business, we will need to value the business as of the date of death. A decision must be made whether to continue the business or to sell it.

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. You 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

A list of all the Decedent’s assets (including account or policy numbers) 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, but please discuss this with me before incurring that expense.

LIFE INSURANCE

Any life insurance payable on the Decedent’s life will need to be applied for by the beneficiary of each such policy. If you need help in filing claims on any life insurance policies, please let us know. With respect to each life insurance policy, the beneficiary should request a Form 712 from the insurance company. A Form 712 is an official form from the insurance company showing the exact amount of the death benefit or other insurance proceeds.

TN INHERITANCE TAX

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

LETTERS

You will take your Oath that you will properly perform your duties as the personal representative of this estate to the best of your ability and the Clerk’s Office will issue you Letters Testamentary (Will) or Letters of Administration (no Will). You will need these letters to open the estate bank account and in handling your duties as the personal representative of the estate. Without these letters, you have no legal authority.

What the Attorney Will Need From You

SAFE DEPOSIT BOX

If the decedent had a safe deposit box and the bank prepared an inventory of the box, we will need a copy of that inventory.

GIFTS

If the Decedent made any gifts during his or her life that were over the annual exemption amount to any individual person during any single year, information needs to be gathered 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 any federal and/or gift tax returns were ever filed by the Decedent, copies of these returns will need to be gathered.

FEDERAL INHERITANCE TAX

A federal estate tax return is due nine (9) months from the date of death if the entire estate exceeds a certain dollar value (high net worth). For the current value, please review this page.

FEDERAL INCOME TAX RETURN

The federal income tax return (Form 1040) 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, we will need copies. You are responsible to make an appointment with a certified public accountant 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.

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.

What Olivia Wann Law Can Do For You

FEIN

Federal tax identification number for the estate will need to be obtained from the IRS. We will obtain this on your behalf if you sign the appropriate IRS document.

NOTICE TO CREDITORS

Probate Court is required by Tennessee law to publish in a local newspaper a notice to creditors of the estate informing them 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. The attorney will discuss these debts prior to making payment as we may be able to negotiate with creditors (such as credit card companies).

When a claim is received, the Court will send a copy of the claim to you and a copy to your attorney. If there is a question, keep in mind we have 30 days after the end of the four (4) months’ notice. If we do not file an exception during that 30 day period, we cannot raise any questions regarding the debt and the claim becomes a judgment against the estate.

You must make a diligent effort to identify anyone the decedent owed money. We will provide you with a Notice to Creditors.

You must carefully review medical bills, credit card statements, bank records, and tax returns.

The priority of claims is as follows:

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.

SOCIAL SECURITY

The Social Security Administration will need to be notified of the Decedent’s death. Please let us know if you would like for us to notify the Social Security Administration on behalf of the estate.

CREDIT CARDS

If the Decedent had any credit cards, those credit cards will need to be cancelled and each credit card company should be notified of the Decedent’s death.

TENNCARE

We are required by statute to file a notice with TennCare with whether the decedent utilized TennCare benefits or not if the decedent was age 55 or older. If the decedent utilized TennCare benefits, the State has the right of recovery. In this scenario, if the decedent utilized long term care benefits through the State’s program (TennCare –Medicaid), the State has the right to recover the amount paid for the decedent’s care from the assets probated such as the real estate. The State is paid prior to beneficiaries.

BOND

If there is no Will or if the Will did not waive the need to have a bond, you may be required to purchase a bond in handling your duties.

REPORTS TO THE COURT

If the estate is open after 15 months, we are required to file a report to the Court and thereafter, annually unless waived in the Will.

CLOSING THE ESTATE

Once the creditors are paid and the assets are distributed, the estate is closed. The remainder of the paperwork is filed with the Court such as a Final Settlement and then your duties will be completed.