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Probate without a Will
Dealing with the death of a loved one is never easy; however, we are here to assist you and help make the probate process as stress free as possible. If your loved one died without a will, they are considered to have died intestate. Tennessee has default inheritance rules in place for when someone dies without a will. These inheritance rules are governed by Tennessee’s intestate succession laws. Thus, if there is no will, or the decedent’s will is found to be invalid, the decedent’s heirs can still be determined and the decedent’s estate can still be probated. If your loved one died with a will, they are considered to have died testate. Click here to view three quick steps to probating an estate with a will.
Three quick steps to probating an estate without a will:
1. Select the type of probate service you need,
2. Print and complete the Prospective Client Intake Form, and
3. Send the Prospective Client Intake Form to our Memphis probate attorney.
Step 1: Select the Type of Probate Service you need:
Our Memphis Probate attorney offers five types of probate services to aid in the adminstration of an estate when a loved one has died without a will. Click on the type of Probate services to learn when it is used, its requirements, procedure, administration, and fees.
1. Affidavit of Heirship(No Administration)
2. Small Estate Affidavit(No Adminstration with Court Approval)
3. Determination of Heirship (No Administration with Court Judgment)
4. Court Created Independent Administration (Unsupervised Adminstration)
5. Dependent Administration ( Supervised Administration)
Continue to Step 2: Print and Complete the Prospective Client Intake Form for Probate without a will.
Affidavit of Heirship(No Adminstration)
When used — This type of affidavit is used to establish title to real estate where the sole asset of the estate is real property.
Requirements — In order to file an affidavit of heirship, the following requirements must be met:
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The decedent must have died without a will;
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No petition for the appointment of a personal representative may be pending or have been granted; and
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No formal administration is necessary.
Procedure — An affidavit of heirship is prepared by our Memphis Probate attorney that details the decedent's heirship facts and the assets of the estate. The affidavit is then signed before a notary public by two disinterested witnesses. The affidavit is then filed with the register of deeds office in the county in which the property is located.
Administration — There is no administration associated with this type of probate. Affidavits of heirship are filed with the register of deeds and not the court.
Click here to see our Memphis Probate attorney’s fee schedule for an Affidavit of Heirship, or schedule a consultation with our Memphis Probate Attorney to get started.
Continue to Step 2: Print and Complete the Prospective Client Intake Form for Probate without a will.
Small Estate Affidavit(No Adminstration with Court Approval)
When used — This type of affidavit is used to collect a small amount of money owed to the estate (such as a small bank account). A small estate affidavit may also be used to transfer title to real property that still qualifies as a homestead upon the death of the decedent.
Requirements — In order for the court to approve such an affidavit, the following requirements must be met:
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Forty five(45) days must have elapsed since the death of the decedent; and
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The value of the entire assets of the estate, not including real property, must not exceed $50,000.
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A certified copy of the death certificate must be available;
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The original Last Will and Testament must be available( if the deceased person had a will);
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There must be proof of assets with a dollar amount(i.e. Bank Statement, Blue Book Value print out, correspondence from the Insurance Company, etc.);
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There must be a waiver of bond from all heirs; and
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There must be a list of all outstanding debts owed by the deceased person.
Procedure — A small estate affidavit is prepared that details the decedent's heirship facts and the assets of the estate. The affidavit is then signed before a notary public by all of the heirs of the estate and two disinterested witnesses. The affidavit is then filed with the court which either approves or denies the affidavit. If approved, the Court will issue an Order Approving Small Estate Affidavit. The Order constitutes authority for the bank to transfer the money to the distributees named in the affidavit.
Administration — There is no administration associated with this type of probate. The court does not appoint an administrator in this type of proceeding because no formal administration is necessary. Some financial institutions, however, may insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive "Letters Testamentary" or “Letters of Administration” prior to releasing estate funds. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If your loved one had securities or significant bank accounts, you may be forced to ask the court for an administration. You should check with the decedent’s financial institutions before selecting this type of probate proceeding.
Click here to see our Memphis Probate attorney’s fee schedule for Small Estate Affidavit, or schedule a consultation with our Memphis Probate Attorney to get started.
Continue to Step 2: Print and Complete the Prospective Client Intake Form for Probate without a will.
Determination of Heirship(No Adminstration with Court Judgment)
When used — This type of probate is used to establish title to estate property where the assets include real and/or personal property and the estate does not qualify for a small estate affidavit. This type of probate is also used when the all of the heirs of the estate cannot or will not sign a small estate affidavit.
Requirements — In order for the court to issue a Judgment Declaring Heirship, the following requirements must be met:
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The decedent must have died without a will or when there was a will but any real or personal property was omitted from such will;
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There are no debts due and owing by the estate; and
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There is no need for a formal administration to pay bills or collect and distribute estate property.
Procedure — An Application for Determination of Heirship is filed with the court. The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent. After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate. The Judgment Declaring Heirship can then be used to prove title to estate property.
Administration — There is no administration associated with this type of probate. The court does not appoint an administrator in this type of proceeding because there is no need for a formal administration. The court merely declares the identity of the heirs of the estate. Please know that some financial institutions insist on only releasing estate funds to a court-appointed executor or administrator. The institutions do this by insisting that they receive “Letters Testamentary” or “Letters of Administration” prior to releasing estate funds. These “Letters” are the documents issued by the court to the court-appointed executor or administrator. If the decedent had securities or significant bank accounts, you may be forced to ask the court for an administration. You should check with the decedent’s financial institutions before selecting this type of probate proceeding.
Click here to see our Memphis Probate attorney’s fee schedule for Determination of Heirship, or schedule a consultation with our Memphis Probate Attorney to get started.
Continue to Step 2: Print and Complete the Prospective Client Intake Form for Probate without a will.
Court Created Independent Adminstration (Unsupervised Adminstration)
When used — This type of probate is used when there is a necessity for an administration and all of the heirs of the estate agree to an independent administration and the person to serve as administrator.
Requirements — In order for the court to create an independent administration, the following requirements must be met:
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The Decedent’s date of death must have been within the last ten years;
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The decedent must have died without a will or the will must have failed to distribute all of the decedent's property;
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There must be a need for a formal administration;
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All of the heirs of the estate agree on the advisability of having an independent administration;
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All of the heirs of the estate agree on a qualified person, firm, or corporation that will serve as independent administrator;
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The court must find that an independent administration is in the best interest of the estate (note: the court will usually not grant an independent administration if a minor child is an heir to the estate).
Procedure — Pursuant to T.C.A. 30-1-101, an Application for Letters of Administration is filed with the court. All of the heirs of the estate must either sign on to the Application or sign a consent form. The court then appoints an attorney ad litem for unknown heirs who will investigate the heirship facts of the decedent. After a hearing, the court will issue a Judgment Declaring Heirship which names the heirs of the estate. The court will also determine if there is a need for an administration and whether an independent administration is in the best interest of the estate. If so, the Court will appoint an Independent Administrator of the Estate and issue Letters of Administration to the Administrator.
Administration — There is an administration associated with this type of probate. The court appoints an administrator and issues Letters of Administration to the administrator. The administrator will then be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the intestate heirs of the estate in accordance with the Judgment Declaring Heirship. In an independent administration, the administrator of the estate acts independently from the court. That is, the administrator does not need the court’s permission to pay bills or to sell or distribute the assets of the estate to the intestate heirs. After the hearing, the administrator need only publish a notice to creditors in the local paper, and file an inventory of the estate’s assets with the court.
Click here to see our Memphis Probate attorney’s fee schedule for Determination of Heirship, or schedule a consultation with our Memphis Probate Attorney to get started.
Continue to Step 2:Print and Complete the Prospective Client Intake Form for Probate without a will.
Dependent Adminstration (Supervised Adminstration)
When used — There is a necessity for an administration and all of the heirs of the estate will not or cannot agree to an independent administration or the person to serve as administrator. This is frequently the case when the beneficiaries are hostile towards one another or when one of the beneficiaries is a minor.
Requirements — In order for the court to create an independent administration, the following requirements must be met:
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The Decedent’s date of death must have been within the last ten years;
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The decedent must have died without a will or the will must have failed to distribute all of the decedent’s property; and
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There must be a need for a formal administration.
Procedure — An Application for Letters of Administration is filed with the court. At the hearing, the court will determine if there is a need for an administration. If so, the Court will appoint an Administrator of the Estate and issue Letters of Administration to the Administrator.
Administration — There is an administration associated with this type of probate. The administrator will be charged with collecting the assets of the estate, paying the debts of the estate, and distributing the remaining assets to the heirs of the estate in accordance with the default inheritance rules. The court closely supervises the administration of the estate. Bills cannot be paid and assets cannot be sold or distributed without the approval of the court. Periodic accountings must also be prepared to advise the court of the status of the estate. The amount of attorney time in this type of proceeding is generally a function of the number of creditors of the estate, the amount and character of the assets in the estate, and the degree of disharmony amongst the heirs.
Click here to see our Memphis Probate attorney's fee schedule for dependent administration, or schedule a consultation with our Memphis Probate Attorney to get started.
Continue to Step 2: Print and Complete the Prospective Client Intake Form for Probate without a will.
Step 2: Print and complete the Prospective Client Intake Form
To get a quick start on your case, an heir to the estate (preferably the chosen Administrator, if any) should download the Prospective Client Intake Form for Tennessee Probate without a Will by clicking on the link below:
Prospective Client Intake Form for Tennessee Probate without a Will
Be sure to fill the intake form out as completely and accurately as possible as the information contained in the intake form will be used to draft your documents.
The Prospective Client Intake Form is a downloadable Adobe® PDF file. If you are having trouble downloading the file, you may have to install the Adobe® Reader®.
Click here to see our Memphis Probate attorney's fee schedule for probate, or schedule a Probate Planning Session with our Memphis Probate Attorney to get started.
Continue to Step 3: Send the Prospective Client Intake Form for Probate without a will to our Memphis Proabte Attorney.
Step 3: Schedule a Probate Planning Session
Once the heir has fully completed the Prospective Client Intake Form, he or she should schedule a Probate Planning Session. The completed intake form will need to be provided to our office during your Probate Planning Session.
Payment Terms — We accept cash, certified checks, money orders, MasterCard, Visa, American Express, and Discover for the payment of attorney’s fees and expenses. A 7% processing fee will be added to all credit and debit card payments. A signed retainer agreement is required prior to our Memphis Probate attorney accepting you as a Client.
Click here to see our Memphis Probate attorney's fee schedule for dependent administration, or schedule a consultation with our Memphis Probate Attorney to get started.