Probate is the legal process of proving a decedent’s will and transferring his or her assets to devisees or heirs. The probate process is codified at Titles 30-32, 35 of the Tennessee Code.
When a decedent dies, his or her assets become part of the estate. The way the decedent’s property is titled determines which assets are subject to probate. Probate property typically includes any property the decedent held in his or her name alone. Property titled with a right of survivorship or with a beneficiary designation is generally exempt from probate, as is property held in a trust.
The first step of initiating probate is determining whether the decedent died testate (with a last will and testament) or intestate (without a will). Assets not devised according to a will are transferred via the state’s laws of descent and distribution (Title 31). Devises, or testamentary dispositions of real or personal property (T.C.A. 31-1-101(2)), made by the decedent in his or her will are not valid, however, until the will is proven in probate. In Tennessee, a probated will is sufficient evidence of a devise of real estate (T.C.A. 32-2-107, 32-2-111).
The next step is appointing a personal representative (PR). A PR acts in a fiduciary capacity to settle the estate. When the decedent dies testate, the court grants letters testamentary to the named executor. T.C. A. 30-1-106 establishes preference in the court’s granting of letters of administration in an intestate estate. The letters provide evidence that the PR is acting in his or her duly authorized capacity and allow him or her to open the estate.
T.C.A. 30-1-117 establishes the content requirements for a petition for grant of letters to administer an estate, and documents to be filed with application for letters. A valid petition identifies the petitioner; states the decedent’s name, age, place, and date of death, as well as his or her residence at the time of death; the name, age, and address of each heir, if the decedent died intestate, or devisee or legatee, if the decedent died testate, along with his or her relation to the decedent; and must also contain any document offered for probate, attached as an exhibit to the document.
If there is a will, the petition should also indicate whether such will waives the personal representative’s accounting requirements, and a statement as to whether the attached document has been revoked, and that the petitioner believes such document to be the decedent’s last will.
A decedent’s will is proved and recorded, and letters issued, in the county where he or she maintained residence (32-2-101). The court with jurisdiction in probate proceedings depends upon the county. Some counties in Tennessee have their own probate courts; in others, probate is handled by the probate division of the chancery court.
Administrative duties officially begin once the PR is granted letters. Duties of the personal representative include, but are not limited to, filing requisite legal forms and mailing affidavits of notice, taking inventory of the estate, filing tax returns, paying valid claims on the estate and expenses of administration, which may include family and homestead allowances, and distributing the estate after final accounting. Unless limited by the terms of a will, the PR has the specific powers outlined in T.C.A. 35-50-110, and may act upon them without needing court approval.
When the decedent’s personal property is insufficient to pay the estate’s debts, the personal representative – executor or administrator – may petition the court for sale of land (30-2-402). The court may decree a sale if there is sufficient evidence that the land should be sold.
The personal representative must seek court permission for sale of real property where the decedent’s will does not grant a power to sell real estate, and in intestate estates (30-2-418). The clerk is required to provide notice of sale to heirs and devisees and other interested parties of the proceedings. After notice and appraisal of the property, the court may order the sale.
To transfer title to real property to a purchaser following a sale, the PR executes and records a fiduciary deed. Depending on the type of letters the PR holds, this is either called an executor’s deed or an administrator’s deed.
Typically, executors’ and administrators’ deeds contain fiduciary covenants akin to those found in a special warranty deed, and the deed may even be indexed as a special warranty deed in the county land records. The warranty of title in a special (limited) warranty deed only covers the period that the grantor held title to the property, along with covenants that the grantor is lawfully seized and possessed of the property in fee simple and has a good right to convey it, and that the property is unencumbered, unless noted on the face of the deed.
Fiduciary deeds name the personal representative as the granting party, reference the decedent, and may cite information about the probated estate, such as the county of probate and the case number assigned to the estate. A fiduciary deed follows the same formalities as any deed affecting title to real property, which include a legal description of the subject parcel, the parcel and map numbers assigned by the taxing authority, and a recitation of the grantor’s source of title. Any restrictions on the property should be noted on the face of the deed.
Instruments in Tennessee also require an oath of value (T.C.A. 67-4-409(a)). On any type of warranty deed, the oath reflects the consideration made for the transfer or what was given for the transfer, or the value of the property, whichever is greater. This oath is made and signed by the grantee or the grantee’s buyer or agent, typically at the time of recording, as directed by the document’s preparer. Conveyance tax is levied based on the amount reflected in the oath of consideration and is due upon recording.
After claims on the estate are paid, the PR may distribute the estate. An affidavit of heirship under T.C.A. 30-2-712, when recorded in the county where the affected property is situated, is evidence of the transfer of title to successors in interest of the decedent’s real property. A standard affidavit of heirship contains the legal description of the realty and lists the heirs by name, address, and relation to the decedent.
Tennessee law requires recipients of a distribution from the decedent’s estate to execute a receipt to the personal representative of any legacy, distributive share, or interest in the estate, and made under penalty of perjury or before a notary public (20-2-707). The PR files receipts with the court as evidence that the estate is distributed according to the terms of the decedent’s will or laws of intestate succession, and that the distributees acknowledge the estate has been properly distributed.
Record deeds and instruments relating to real property in the Register of Deeds’ office of the county where the subject land is situated. Instruments affecting interests in real property must meet state and county requirements for form and content, and should reflect the preparer’s name and address, the property tax address, and be signed by the granting party in the presence of a notary public. Include any requisite documentation with the deed, which may include a certificate of probate, certified copies of a will, or related probate orders.
Related Tennessee Probate Forms:
The information provided here is not a substitute for legal advice and does not address specific probate situations. Consult an attorney licensed in the State of Tennessee with questions regarding fiduciary deeds and probate procedures in that state, as each situation is unique.