Probate FAQ
Below are our responses to some frequently asked questions regarding estate and trust administration.
Download the document on our Resource page.
Q. What exactly is probate and how does it work?
A. Probate is the process of going through the Court (Chancery Court in MS and Probate Court in TN) to wrap up and finalize a deceased person’s affairs. The probate process will vary from state to state; the following discussion centers on Mississippi and Tennessee law.
In a Testate Estate (one in which there was a valid will left by the deceased) the court will appoint the executor named in the will to take care of the deceased person’s affairs. The executor will generally contact a lawyer and begin the process of collecting the decedent’s probate property. This property includes his or her bank accounts, vehicles, and all other accounts and property held in his or her name. This is used it to pay the decedent’s bills, and then distribute whatever remains as provided in the will. (For a discussion of what constitutes “probate property,” please see our Wills and Estate Planning FAQ page.)
In an Intestate Estate (where the person died without having a valid will) the court will appoint a person called an “administrator” to take care of the deceased person’s affairs. Like an executor, the administrator will collect the decedent’s probate property and use it to pay the decedent’s bills. However, the administrator will then distribute the decedent’s remaining probate property as provided under Mississippi or Tennessee law. Who receives this property depends on the identity of the decedent’s relatives. For instance, under Mississippi law, if a husband dies with a wife and two children but no will, his wife would receive 1/3 of her probate property, and each child would receive 1/3 of her probate property. Such a distribution may or may not be what the decedent would have wanted; that’s one reason why it is so important to have a will.
Q. Is probate always needed?
A. No. In Mississippi, probate is not needed if the decedent’s estate is worth less than $30,000 at his or her death and if there is no real property, or if the real property’s value is less than $10,000. In Tennessee if the value of the estate, not including real estate or jointly held property with right of survivorship, is $25,000 and there is no real property then probate is not needed.
Putting most or all of a person’s probate property into a living trust is one way to turn this property into non-probate property, thereby avoiding the need for probate. This is one of the advantages of having a living trust (other advantages are discussed in our Wills and Estate Planning FAQ page). While probate in Mississippi or Tennessee is a relatively quick and inexpensive procedure, avoiding probate is generally a good idea, especially if the decedent owned real estate in more than one state (a fact which might otherwise require multiple probate proceedings).
Q. How is a living trust administered upon death?
A. When a person dies owning property in a living trust, the property is administered as provided in the trust document. If the person was acting as trustee, his or her successor will take over this job. The successor trustee will then distribute the trust property, or continue to hold it in trust, as provided in the trust document. No court proceeding is necessary for the administration of a living trust upon the death of its creator. (You can learn more about trusts by reading our Wills and Estate Planning FAQ page.)
If you would like to set up a meeting to discuss the administration of a deceased person’s estate or trust, please contact us.
