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Alternatives to Traditional Probate

Posted by Unknown | Mar 09, 2016 | 0 Comments

Alternatives to traditional probate

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Hollywood likes to make movies about the rich uncle who dies and leaves millions to some unprepared relative. “Brewster's Millions,” “Mr. Deeds,” and many other films involve a complicated will, or lack thereof, in a person receiving lots of money and going through the trials and tribulations of managing it. However, in reality many people scrape to get by, don't want to invest, or just choose to live in the moment and not accumulate assets. Many people who live in large cities or work jobs that frequently relocate choose to rent apartments or houses so they never own what is called “real property” or land. These people may feel they do not need a will or that their beloved children would never fight over their meager assets. However, with memories come strong emotions, and with strong emotions come other strong emotions like entitlement and anger. Other families plan for the inevitable and distribute earthly assets before death or agree that they will be donated. Still others have their material assets eaten up with debts such that there may only be the home or keepsakes left. Tennessee law has contemplated these situations with alternatives to the lengthy and expensive probate or administration process.

Small Estate Affidavit

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The Small Estate Affidavit is one alternative to probate when the person that has passed has no land or houses to pass to their heirs or will devisees and has less than $25,000 in personal property- things like money, furniture, and cars. 

The Small Estate Affidavit has advantages over normal probate. There is no lengthy process of probate where the bill collectors are contacted, a judge determines if everything is distributed properly, and the estate is closed months, if not years, later, sometimes at great expense. With a Small Estate Affidavit, someone swears in court to make sure that the bills get paid and the assets are distributed by the next of kin or by the person's Last Will and Testament. Because the estate is small and there is no dispute as to property, the court will open and close the estate the same day. If the person that passed has left only a few assets, such as a bank account, clothes, keepsakes, jewelry, or a car, the Small Estate Affidavit may be the best way to complete the last wishes of the decedent.

The Huffman Firm can help ensure that your small estate affidavit is filed properly including contacting heirs and others who may have an interest in the estate.

Muniment of Title

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Sometimes people have already distributed their assets to who they want to have them before they die or have made sure that any bank accounts or IRAs pass by survivorship designations. Others may own land in counties other than the one in which they live. In these situations, the land must still be dealt with by the courts to make sure it passes to the proper people in the Will. Probating the will in multiple counties could get very expensive and very time consuming. However, real estate, which is land and anything permanently attached to it, can be passed quickly if the person that died has a will. Filing the will as a muniment of title allows the court to open and close the estate in the same day while ordering that the land go to whomever the will decrees. The will and order get filed with the register of deeds for the county and they transfer the land to the the person that the will devises.

For people who didn't have a will and have a simple land transfer, the heirs of the person (children, grandchildren, etc.) can file an affidavit of heirship with the register to have the land transferred into their name. The down side to the Affidavit of Heirship is that land is not devised to a certain person but rather to all heirs at law in common, so the land may be owned by several people at once.

I don't need a will!

Man couple people woman

I trust my children. They know what I would want…

I don't really have anything of value…

I want my house to go to my kids anyway…

Many people will make excuses for why they don't want to go through the effort of making a will. It can be scary to face the inevitable truth that we will die and all that is left here is our property.

However, making a will doesn't just ensure that your property goes to those you want it to go to, it makes sure that things like estate taxes, bills, and other issues are taken care of. It can also make sure that the ring or keepsake that you told your granddaughter years ago that she could have doesn't end up in the hands of someone else who prizes their own sentimentality more than your own wishes. It can prevent squabbling over land, jewelry and even that quilt that you kept on the couch that can, unfortunately, tear family relationships apart.

Huffman Law Firm offers will packages that include not only a Last Will and Testament so that your desires are memorialized, but also Durable Medical Powers of Attorney (Living Wills) and Durable General Powers of Attorney that ensure that if you come to that point that you cannot make decisions for yourself, someone you trust is making them and that your desires are known.

I will discuss Medical Powers of Attorney and General Powers of Attorney in another post, but the combined weight of the three can help ensure that your twilight does not turn into a nightmare for you or your family.

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