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Understanding Probate

Many people hear the word “probate” and picture a long, drawn-out, expensive process. That may be the case in some states and in some special situations, but for the most part, probate can be fairly painless, especially in Tennessee.

First, it helps to understand what probate is. Probate is the process of administering a person’s estate by paying his or her creditors and distributing his or her property. That’s it. Probate is opened through a court and an executor (if there is a will) or administrator (if there is no will) follows some basic procedures to make sure creditors are identified and paid and that beneficiaries receive what they are supposed to receive. Of course, there are technical procedures that have to be followed carefully, but the overall intent is to pay creditors and distribute property.

What many don’t realize about probate is that some property can pass directly to the beneficiaries without the need to go through probate. In fact, most people already have some property set up this way without realizing it. Retirement plans, such as 401(k)s and pensions typically have named beneficiaries on the account. If so, those funds are distributed directly to the beneficiary and don’t go through probate. Likewise with life insurance. If a beneficiary (other than the estate) is named, the proceeds go to that person without going through probate. If a couple owns an automobile together and the title is listed and/or, that means the automobile belongs to both or either spouse, and is therefore already “owned” by the surviving spouse and doesn’t go through probate. And finally, the marital home typically won’t go through probate when the first spouse dies, if both spouses are on the deed to the property.

There are a number of ways that a person can set up their property to pass to beneficiaries without going through probate, including using trusts. Each situation is different and needs to be tailored to the person’s needs and assets, keeping in mind possible tax consequences.

The bottom line, though, is that probate probably isn’t as bad as you may have thought. You can read more about what’s required in administering an estate here: http://circuitclerk.nashville.gov/probate/faq.asp.

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