Chris Thomas

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... and Some Myths Exposed

Q: Where is the Probate Court Clerk located?

A: In Room 124 of the County Courthouse at 140 Adams Ave. Memphis, Tennessee. It is bordered by Washington, Adams, 2nd and 3rd streets.

Q: What is the mailing address?

A: Probate Court Clerk
140 Adams Ave. #124
Memphis, TN 38103

Q: What are the office hours?

A: 7:00 am to 5:00 pm beginning August 4, 2008

Q: What is the phone number and fax number?

A: 901-545-4040 (phone)
    901-545-4746 (fax)

Q: How much are copies?

A: Copies - $.50 per page
Certified Copies - $.50 per page plus $5.00 for Certification

Q: Can you refer me to an attorney?

A: The Clerk's Office cannot refer attorneys.

Q: What are Court hours?

A: Court hours are when the Court is in session. The regular Court hours are 9 a.m. to noon and 2 p.m. to 3 p.m. on Monday through Thursday and 9 a.m. to noon on Friday.

Q: Am I required to have an attorney in Probate Court?

A: In general, a person has the right to represent oneself in legal proceedings. However, this is discouraged. Persons representing themselves are taking a serious risk in doing so. Legal proceedings involve statutes, court rules, deadlines; and other factors of which non-lawyers may not be aware. A person representing oneself is held to the same standards as if he or she is a lawyer. The judge is not allowed to give advice to the individual who attempts to represent oneself.

Also, it is important to understand that the Courts will not allow a person to represent oneself in his or her capacity as a fiduciary, such as executor, administrator, conservator, or guardian. The reason for this distinction is that in those capacities there are other people involved, such as heirs, beneficiaries under a will, or creditors. While serving as a fiduciary the person is not just representing oneself and therefore must have an attorney.

Q: Do I have to Probate a will?

A: No. However, if a decedent owned assets in his/her individual name it is doubtful that they can be transferred without a probate proceeding.

Q: How long do I have to probate a will?

A: There is no set time required by law. Once probated the will relates back to date of death.

Q: What is the average cost to probate a will?

A: There are different types of costs. There are court costs. Unless there are many claims and other litigation the total court costs should be less than four hundred ($400.00) dollars. Then there are other fees that are dependent on the size and nature of assets. These fees are typically incurred for legal proceedings, for appraisals of real and personal property, and for preparations of tax returns. No two estates are alike and it is very difficult if not impossible to determine what is average. Then too, there are costs incurred in actually transferring assets. The probate process gives some one or ones the right to transfer assets. There are additional costs involved in order to exercise this right. A full list of court costs can be found HERE. All of these costs DO NOT include attorney fees

Q: How do I change a name? How much does it cost?
     How about my Birth Certificate? Do I have to get an
     attorney?

A: Our office will assist you in completing the necessary paperwork to present to the judge. HERE is an information sheet you should fill out and have ready when you contact this office.

NAME CHANGE
For a valid reason, you may petition the court to change your name. You will need to bring your birth certificate and a second form of identification (preferably a valid drivers license with a photo identification.) If you are unable to obtain a birth certificate you must bring at least two forms of identification and one must be a photo identification. The cost for a name change is $143.50.

CORRECTING BIRTH RECORD
A correction of a birth record is different from a change of name in that an error has been made and needs correcting. For example, the birthday is the 5th instead of the 6th or the name was misspelled. You will need to bring your birth certificate and a second form of identification. The cost for correcting a birth record is $143.50.

NOTE: If you are changing the name of a minor child, both parents must be present OR have a notarized statement from the absent parent.

Q: What is the cost for a certified copy of Elvis Presley's
      Will?

A: $11.50

Q: What is the Small Estate Affidavit?

A: This is a procedure allowed for estates totaling less than $25,000. Real estate cannot be listed on the affidavit. The forms can be found on the FORMS page of this site or can be obtained from the Clerk's Office. Contact the Clerks Office for details. The cost is $77.50.

Q: How can I determine if an estate is open?

A: Go to our web-site homepage and click on "Case Information" in the blue menu bar on the left.

Q: What if my question isn't answered here?

A: If you have questions that are not answered here please feel free to email the Probate Court Clerk or call us at (901) 545-4040. The Clerks Office will make every attempt to respond to your question within 48 hours.

And Those Myths that Keep Recurring ...
(compiled by Marilyn E. Rozier)

1. If I die without a Will, the State of Tennessee will get everything that I own.

RESPONSE: Untrue.
When a person dies without a Will, it is called dying intestate. There are Tennessee Statutes which direct how your assets pass under intestacy, but the statutes do not automatically direct that all of your assets go to the State of Tennessee. When a person dies intestate, after the payment of debts and other expenses of the estate, a person's property passes to their heirs at law. Under Tennessee Code Annotated Section 31-2-104, if the decedent has a spouse and no children then the entire estate passes to the surviving spouse. If the decedent has a spouse and living children, then the surviving spouse receives either one-third, or a child's share, whichever is greater and the remainder is divided among the children. If there is no surviving spouse but surviving children then the entire estate passes to the children. The statutes go further and direct how assets are to pass if there are no children or a surviving spouse. Only if there are no surviving heirs-at-law under the statutes would the property ever pass (escheat) to the State of Tennessee.

2. All Wills must be filed with the Probate Court when a person dies.

RESPONSE:. Untrue.
Wills are only required to be filed with the Probate Court when needed to open up a Probate administration of some type. If a person dies and every asset that they owned is held jointly with right of survivorship with another person or lists a living person or entity as a beneficiary, then no probate procedure is usually required. A probate administration is only required if there are assets in the decedent's individual name, or assets payable to the decedent's estate such cases require probate documentation for transfer of the assets. If you have a Will and all of your assets pass to named beneficiaries or joint owners, then there is no need to admit your Will to probate. However, if you have assets in your individual name or if there are assets payable to your estate, then your Will will have to be filed with the Probate Court and admitted to Probate to obtain the assets.

3. Estates must be opened for years.

RESPONSE:
Contrary to popular belief, not all estates take years and years to resolve. Under Tennessee Statutes a probate estate must be opened for at least four (4) months from the time Notice to Creditors begins to run in the local newspaper. After said time period the estate can be closed as soon as all assets have been collected, all creditors paid, and the tax release letter received from the Tennessee Department of Revenue. If all of the estate issues are resolved at the end of the four (4) months or shortly thereafter, then the estate can be closed. Many estates that do not have to pay inheritance taxes, and that are not involved in litigation, can and should be closed within four (4) to twelve (12) months from opening. Larger estates that must pay inheritance taxes, estates involved in litigation and contested estates can be prolonged for more than a year and years in some cases. However, the prolonged estates are not necessarily the norm nor do they have to be.

4. If I am named as an Executor of someone's Will, I can handle their estate any way I chose.

RESPONSE: Untrue.
If a Will has to be admitted to probate and an estate opened for a deceased person or if an intestate administration is opened, then there are probate court rules and statutory guidelines regarding how the estate is to be administered. All assets collected on behalf of the estate have to be held under the name of the estate and in specific estate accounts. Executors are not allowed to pay any creditors that they choose. If a creditor is owed more than $1,000.00, then that creditor must file a claim against the estate. Creditors owed less than $1,000.00 can be paid at the discretion of the Executor. Certain fees and costs incurred by the estate must be approved by the Court. If accountings are required to be filed in the estate, then any expenditures made by the estate must fall within the expenditures allowed by the rules of the Court and the statutes. People commonly make the mistake of thinking that they can pay anyone for any services as long as they are named as Executor. However, there are checks and balances to the administration of an estate, and the activities and administrative steps taken by an Executor/Administrator are governed by specific procedures.

5. If a deceased person only had a house, then no probate administration is required.

RESPONSE:
This is not necessarily true. Technically, under Tennessee Law, real estate passes automatically at death to the named beneficiaries under the deceased person's Will or to their heirs at law if there is no Will. In reality, however, if the property is ever to be sold then at some point documentation is going to have to be filed with the Probate Court, if there is a Will, or with the Register's Office if there is no Will. If the deceased person had a Will and only a piece of real estate, then a Petition for Muniment of Title is filed with the Probate Court, to evidence the transfer of the title from the deceased person to the named beneficiaries under the Will. If the decedent did not have a Will, then Affidavits of Heirship, stating the heirs at law of the decedent at death, must be filed with the Register's Office. Both documents indicate who the proper recipient of the real property is after the owner's death. Most title companies will require one or the other depending on if there is a Will or not, before they will issue title insurance on the property of a deceased person. If the beneficiaries under a Will, or if there is no Will, the heirs at law are minors (or under the age of eighteen), then a full probate proceeding will have to be initiated to deal with the real estate.

6. The cost of a probate administration will eat up all of the estate assets.

RESPONSE:
There are many horror stories and many true stories where the bulk of the estate goes to pay attorney fees and court costs. However, this is not the norm and is only in select circumstances. In estates where there is ongoing litigation or a will contest, the court costs and attorney fees associated with litigation or will contest can be quite substantial. However, if there is no ongoing litigation or will contest, then the cost associated with a probate administration is usually fairly reasonable. Probate court charges for filing various documents are usually posted or provided to individuals by the Probate Court Clerk. Attorney fees which are incurred in addition to the court costs, are usually negotiated with the attorney handling the estate prior to the estate being opened. As a safety valve, the local Probate Court Rules provide a guideline for attorney and executor/administrator fees. If the Executors, beneficiaries and/or heirs do not agree with the attorney fees or executor fees requested, then the attorney and/or executor are required to petition the court for establishment of the fees. In order to obtain the fee requested, the person requesting the fee must show to the Court that the fees have been earned. In addition, the Court normally requires the fees to fall within the Probate Court guidelines for the establishment of fees. Although there are special circumstances when the fees requested can exceed the guidelines, the Court will take the totality of the estate in consideration when establishing fees in order to prevent all estate assets from going to pay fees.

7. I can leave my spouse out of my Will and direct that everything I own go to my children.

RESPONSE: Yes and no.
One of the biggest problems that can arise after death involves second marriages. Many people in a second marriage situation prepare Wills wherein they leave all their assets to their children and leave the second spouse little to nothing. This type of Will can be prepared, but the surviving spouse does not have to take according to the terms of the Will. Tennessee Statutes give surviving spouses certain spousal rights. Under these rights the surviving spouse can elect to take against a Will and take according to what the statute would give them instead of what they would receive under the Will. In addition to electing to take against the Will, the surviving spouse can also request the personal property in the home and a year's support payment. So a person can write a spouse out of their Will, but the spouse does not have to accept the Will and can elect to take against it and go through the statutory procedures required.