September 24, 2025 • 25 mins
Show notes for this episode: https://nancycogar.com/how-long-does-probate-take/
Nancy A. Cogar, Esq., has a Tennessee-based practice in estate planning, elder law, long-term care planning & advocacy for older adults. As a partner with Samples, Jennings, Clem & Fields, PLLC, she is committed to comprehensive, competent & compassionate advocacy for seniors, caregivers and families navigating aging and the incoming Silver Tsunami.🔑 For help, visit NancyCogar.com🎙️ Listen to the Boomer Time with Nancy Cogar podcast on Spotify, Apple Podcasts and on YouTube📙 Hey! I'm also on Substack! Visit me at https://nancycogar.substack.com✨Follow on Instagram @nancy.cogarDisclaimer: The information provided on this website and on the podcast is not intended to be considered as legal advice or constitute an attorney/client relationship as provided under the Tennessee Rules of Professional Conduct.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Well, hello out there. Welcome to Boomer Time.
I'm Nancy Kogar. And hey, guess what?
We've got a great show for you today.
We are going to be talking aboutseveral different issues.
Some of them you've asked about and I they're good questions.
So I thought other people probably have the same
questions. They talk about that and talk
about the headline that you may find interesting and even more
(00:24):
interesting to me. This is episode 8686.
Thanks for being with me. I am so excited.
We're getting closer to 100 all the time, so we're going to
celebrate that 100th episode. I'd love your ideas about what
we should do. So got an idea, let me know, but
it's going to be going to be a party.
(00:44):
I'm I am so excited about being able to share this with you.
Hopefully it's helping. Hopefully it's helping to
demystify, you know, some of those issues, legal issues that
can be so confusing. And I do hope that it leads to
you and your loved ones being better prepared as they age.
So today we're going to talk about a couple issues.
(01:07):
As I said, first, the probate process or the process, the
timeline, right? How long is it going to take?
It's slow folks, but I want to talk about some of the specifics
and that's if there's nothing wrong.
So if there's some pitfalls, those troubles can lead to even
additional delays, changes, sometimes even reductions in the
(01:30):
amount of money that's availablein the estate for beneficiaries.
If you're one that that would include you.
So also want to talk about will contest challenges to wills, who
can contest it right and who can't and what's involved with
doing that. Good, good questions on these
issues. So I want to tackle those.
(01:51):
And finally, I had a question about capacity, you know,
otherwise known as competency, right?
You got your sound mind, you're able to make decisions and
that's a real complex issue it can be and it relates to your
ability to make a will right, powers of attorney and other
(02:11):
estate planning documents, you know, especially if there's
already been some kind of diagnosis.
So it's not impossible, but it can be ripe for potential
contest. So I really want to touch on
some of that and talk about someof the things I do to try to
deal with that issue. So, but first, we'll have a
breaking headline for you Belates back to you know how I
(02:35):
feel about scams, right? Well, Publishers Clearing House
good old Ed McMahon. They have filed bankruptcy in
the bankruptcy court for the Southern District of New York
and they were recently purchasedby another another owner.
(02:55):
But the past debts are now in bankruptcy, and they're
reporting liabilities between 50and $100 million.
Unfortunately, as you might expect, it means some of the
past winners may now be losers because of the bankruptcy.
Losers in terms of getting theirmoney, especially those forever
(03:20):
prize people that are out there,you know, the ones that got a
check every week for the rest oftheir lives.
Well, they may not be receiving any further payouts.
It's all part of the bankruptcy issue.
But like I said, Publishers Clearing House, LLC as we knew
it was sold, so it has new ownership and it's often times
(03:44):
something scammers use. And that's why I'm relating it
back to scams because they will misrepresent themselves.
Imagine that. And a lot of times they tell
people, especially older people that they're targeting that
they're calling from Publishers Clearing House.
That still has a lot of credibility out there.
So I think, you know, a company that shows that they're picking
(04:05):
up a check and bringing it to your house sounds more
believable that they would be reaching out to you.
Perhaps. Let me know what you think of
that. I, I do value your opinion when
it comes to these things. So, but Publishers Clearing
House, you know, they've, they've had some issues back in
2023, the Federal Trade Commission ordered the company
(04:25):
to refund about 8 and 18 and a half, $1,000,000 to consumers.
So I'm sure that didn't help. They were accused of some
deceptive marketing. It the Federal Trade Commission
is the, is the agency, the government agency that regulates
those things and including scams.
(04:46):
Not saying this is a scam, of course, but it is often
connected to that. And the company reported revenue
had fallen from about $879 million back in 2018 to just
181,000,000. So that's a big, big steep
reduction. So those winners are now
(05:09):
classified as what are known as general unsecured creditors in
the bankruptcy case. And that just means anything
that's available is split pro rata.
Everybody gets the same share. If they're not any priority
creditors, which there may be, Idon't know.
But you know, maybe a good argument for if you did win
(05:32):
something like this, taking a lump sum payment, right?
What do you think? In any event, be especially
careful because those scammers misrepresent themselves as
Publishers Clearing House. Just be aware of that.
So all right, I want to talk about some of the issues that I
(05:54):
mentioned, and the first one of those let me see here is
probate. What is probate?
I will tell you, probate is slow.
It's slow because there are deadlines that have to be met.
I'm going to talk about a coupleof those, but it's slow.
(06:17):
Also, even getting an appointment, it can be weeks
after somebody dies before you have an appointment.
And that's that's just the norm because you get in a line of
queue and you know, you've everybody's got their petition
ready to provide to the court, but you got to wait your turn.
(06:39):
So, and that's important. The reason I wanted to mention
that was because say there's a mortgage, say their utility
payments, say they're other costs that need to be paid,
maintained. So there's not a default or
foreclosure. You know, the personal
representative is usually the one that the executor that that
(07:00):
takes this on. But in order to keep those
things current while you're waiting, you know, to get into
court, that requires often timesthat they've got to advance
those funds because the other bank accounts, things that don't
have beneficiaries on them aren't doing.
They're all frozen. And you can't get into those
until the court issues letters to the personal representative.
(07:25):
That's something that comes as asurprise to many people because
that can be expensive. I just, you know, was in court
earlier today and we had a reimbursement motion to a
personal representative. Hey, it totaled $30,000.
That's, that's not a normal amount that I normally see, but
there were a lot of costs that were advanced in this case,
(07:49):
obviously. So just be wary of that.
You know, if you are appointed as executor or personal
representative, that may be partof what you're called to do.
So when you finally get an appointment, you know it's
usually 5 weeks out, something like that.
You are going to need to have a lawyer and you are going to need
(08:12):
to have a petition which would be drafted by that lawyer and
attach the original last will and testament.
You need the original in order for that to be probated here.
If you don't have the original, then you got to file another
action to prove that the guy whomade the will didn't revoke it.
There's a presumption that they tore it up.
(08:35):
So make sure to maintain your original last will and
testament. What if somebody has it and
won't turn it over to you? You can compel the court for
turnover. You know, there's really no
affirmative duty to turn it over.
But I will say destruction or intentional concealment, you
(08:55):
know, not hiding it, pretending it's not there, that can be a
serious felony. Something to think about the
court when it, when it does havethat initial hearing, really the
clerk and master will determine whether the will is valid.
If it's not, there are times when I've been able to cure it
(09:19):
or it may be unenforceable. So, you know, I've touched on
this before, but it's important to not do it yourself Will, I've
got an episode on that. You might want to go back and
listen to that. But do it yourself wills, you
think you're saving money, but you may be creating more
problems down the road. That's the truth.
(09:40):
So if you do find or the court does find that the will is valid
and you are qualified as the personal representative, then
letters testamentary will be issued to you.
That is your license to act on behalf of the estate.
So I have a couple other points that I wanted to make, but I
(10:02):
think maybe I'll take a break before I do that.
So stick with me, I'll be right back.
So we are talking probate, What's involved?
Why does it take so long? How long does it take?
(10:23):
And here's another question I hear.
Who can start probate? You know, it takes a while to
get in court most times. So you may be antsy thinking,
why hasn't anybody created probate?
What's going on? Well, it may be that they're
waiting for that appointment in court, but what if they're just
continued delays and nobody files, nobody creates the
(10:46):
estate. Who can who can do that?
Is there alternatives? Well, you know, of course, if
someone's named as the executor in a will, that makes sense,
doesn't it? Sometimes they're alternates.
So I always think alternates areimportant.
But if there's an alternate in the will and the primary can't
serve, the alternate can file heirs at law.
(11:11):
Those are the legal heirs. If there wasn't a will, you know
they can, they can file, they can petition the court, but they
need to prove they have standing, you know, that they're
somehow have a pecuniary or financial interest in the estate
creditors. Some creditors have priority
claims like Tenncare, and they can even set aside conveyances.
(11:35):
If someone doesn't file, they know there's a claim out there.
They can start a probate. So it's important to know, as I
said, the letters testamentary are usually what are issued to
whoever is appointed as the personal representative.
And after that, there's a noticeperiod, due process, right?
(12:00):
Notice to both the creditors that may be out there and the
beneficiaries. And that includes the ones that
are named in the will and those heirs at law that I mentioned
that might inherit if there wasn't a will.
They all need to have notice. There was a notice period
(12:20):
statutorily in Tennessee. Statutorily.
Boy, that's a big word. Four months in the newspaper,
four months to file a claim. Timely claim.
You can object to claims is not being timely.
But hey, we're talking more, more time, right?
So this is all time after the probate's created when you're
(12:45):
really just waiting to satisfy some of these initial
requirements. So if you don't see a lot of
activity at the beginning, this may be why.
So it's just not not a fast process.
So if the personal representative, same thing as
executor is appointed and those letters are issued, they should
(13:11):
and they may start marshalling or collecting assets that belong
to the estate and those assets property, whether it's money,
other property, they have to be pulled together and protected by
the personal representative. So money gets put into an estate
(13:32):
account. And like I said, the it's
subject to the administrative process.
And all through this period, youhave to ask the court for orders
authorizing the personal representative to do things so
that that's a notice period too.But lot of times, you know, say
(13:54):
they've got to sell real estate,something like that.
You've got to ask the court for permission to show that the sale
is reasonable and fair. So all as I said, all these
things take time, but what what if you believe that the personal
representative is up to some hanky panky is taking property
(14:16):
or misusing funds? It happens and you can request
an inventory from the court. You can even seek more serious
relief, but it's a serious issue.
It's called defalcation. Defalcation, Easy for me to say.
We've had folks, personal representatives who have
(14:40):
absconded, ran away with money that that's not good.
But it happens and the court hasput some other things in place
because of those things happening to try to protect the
assets, especially when it comesto sale of real estate.
That money gets put into the court now, at least here.
(15:02):
And I think that makes sense. It protects it for everybody
involved. So before you get your money, I
just wanted to talk about that because it's probably the most
important thing that you're interested in.
The personal representative has to satisfy any claims.
That means the estate has to be solvent.
(15:23):
It has to have money in order topay those claims.
They can object to those if it'sunsecured, secured collateral
and property or even priority claims like the IRS, right and
Tenncare. All those things need to get
resolved. And once all that's done and
(15:44):
once we meet a one year statute of limitations on claims, then
there can be payment of any court costs.
Attorneys fees are usually part of the expense on the probated
estate and whatever is leftover then gets distributed pursuant
(16:05):
to the will. So that's how that works.
It is not not a speedy process. So I hope that helps.
You know, it is important to to have communication.
So those of you out there that are personal representatives or
expect to be best way to avoid an issue is to communicate with
(16:29):
the other beneficiaries because otherwise they're going to sit
there and think and you know, itcan create thoughts that you're
doing something that's not kosher.
So when in doubt, maintain communication because you really
are representing the estate and not you, especially if you're a
(16:50):
beneficiary, you are not representing you.
So issue 2 kind of relates to wills and that's contest
challenges to wills, you know, happens, who can do it, who has
the right to do that and who can't, Why it matters, you know
it. It does matter too what type of
(17:13):
probate you file. Most people don't know.
They're different types of probate and, and what's required
if you do contest a will. You need to know these things
before you initiate anything like that.
So #1 in order to contest a willhere in Tennessee, you must have
(17:35):
standing. So that that's a simple legal
term, which means, like I said, a pecuniary interest in the
estate show that you've got a a stake, a financial stake and a
valid ground for contest so thatbefore anything else happens,
you. That's the process.
And oftentimes the the cause of a contest can be an allegation
(18:01):
that, you know, mom and dad or whoever made the will didn't
have the mental capacity to do it.
They didn't understand what theywere doing.
They were influenced by someone else undue influence that there
was fraud. Maybe they signed it and didn't
think it was a will. You know, you got to prove all
this, of course, or pressure to to give something to someone and
(18:24):
not another. All these things are causes of
action. Once you prove that you you've
got the standing and once the will is admitted to probate,
you've got to post a bond to cover the court costs if you
lose, right? And it's litigation, it's
creating a lawsuit. That is a slow and expensive
(18:48):
process. I know with my wills that I
draft, there are provisions in there to deal with contests so
that they're not, you know, bogus.
You know, at least you've got you've got an auntie that you've
got to got to hold up to. So if you really think there is
something there, you know, therecan be provisions in there that
(19:11):
say you're forfeiting your shareunder the will.
So better, better be successful or not, right.
It's not an easy process, but, but I thought it was important
to touch on that. And you know, those types of
things happen. There's people that get
influenced. I mentioned capacity earlier.
(19:32):
You know, if someone doesn't have the capacity, that may be
an issue. So important stuff.
And like I said, you're going toneed evidence, right?
You need evidence to prove your case and it is litigation.
I had a contest that lasted the better part of two plus years.
(19:56):
And there was another dispute related to family real estate
that lasted five years. So there was 2 lawsuits and you
can imagine how expensive that was.
Went all the way to a jury. So there is a long road, long
road. So let's see, what did I say?
(20:17):
I was going to talk about 20 capacity, right?
That's another hard issue, but one that people ask about a lot.
You know, you know, the thing I thought was interesting is of
course you go out, you have to have a sound mind, the ability
to know you're making a will, that you're disposing of your
assets, that you know, you've got the ability to do all that
(20:40):
and you know you're making a will.
But even if you've had a diagnosis, don't necessarily
rule out being able to make a will thereafter.
I've got people that come in. Oftentimes that's the reason
they come in, because maybe theygot diagnosed with some form of
dementia, Parkinson's, any of those types of things, and they
(21:04):
want to get their affairs in order.
Well, the question of capacity, of course, would come up and we
do things like getting sworn statements from the treating
physicians, things like that, that affirm that the person has
been diagnosed but has the capacity, the competency to make
(21:26):
that document. So, you know, it's good to build
a defense in advance for what you're doing.
It settles my my spirit too, that, you know, I know this
person knows what they're doing.You know, a lot of times you can
just tell, but there's been sometimes where I've said, I'm
sorry, you know, we can't help you.
(21:47):
But but if you, you know, don't rule it out just because you've
been diagnosed, don't waste timethough, you know, don't delay.
And that goes for powers of attorney and all those things.
So you need capacity in order tomake those documents.
And it's just because they don'twant you to be taken advantage
(22:08):
of, right? So that let me see here, I would
just want to make sure that I have all the information I
wanted to give you. So if you're interested, you
know, if you've got testamentarycapacity, as I said, the person,
there's some elements as they call them under the law, they
(22:31):
have to understand the act of making a will.
They have to understand they're creating a legal document that
will dispose of their property after their death and understand
what that means, the effects of doing so.
They have to understand the property they own and its value.
Right? That just makes sense.
(22:52):
They've got to be aware of the natural objects of their bounty.
What in the world does that mean?
It means that they need to know who their potential heirs are,
their children, their spouse, other family members, whatever
the circumstance is. So they need to understand that
(23:16):
relationship and I have to be able to make a rational plan for
distributing that property. That is the inside scoop on
capacity. So I think these issues are
interesting. And like I said, I, I talked
about these things specifically today because I saw a lot of
(23:40):
questions about them. You know, most of the time
people ask questions, Hey, I've got this scenario, so and so's
doing this. What should I do?
Can I challenge it? You know what, what are my
rights, those types of things. And that's what lawyers really
are able to help you with. So when in doubt, always reach
(24:00):
out to a lawyer. You can reach out to me, but if
you have questions, those are interesting.
Of course, I don't know the specifics of any of these
circumstances and that can impact, you know, what the
actual legal advice might be in a given scenario.
These are, this is just meant tobe general, general advice, but
(24:21):
it gives you more of an idea of,you know, what's involved, the
scope and and what you're going to be required to prove right.
So I think that's helpful. In any event, I hope this has
been helpful to you. I always like talking about
these things. If you've got a question, I
encourage you to reach out. Maybe make a future episode.
(24:44):
Hey, Speaking of episodes, if you have not already liked and
subscribed, I know you hear thisall the time, but it's really
important, OK? So if you haven't done it,
please do it because it helps meto reach more people.
It's how social media works and we've got to do this jump
through the hoops in order to besuccessful.
(25:05):
So please do it if you haven't and share this with a friend,
OK, Share it with a friend. I think this information is
important. And there's a whole library 86
episodes now that are available on all kinds of different
topics. So there's there's help out
there and it'd be great if you could share.
(25:26):
I appreciate you. Well, that's it for today and I
look forward to sharing more about my special secret project
that I have in the works. And you're going to be excited
about it too, I think. So take care and I'll see you
next time.
Well, hello out there. Welcome to Boomer Time.
I'm Nancy Kogar. And hey, guess what?
We've got a great show for you today.
We are going to be talking aboutseveral different issues.
Some of them you've asked about and I they're good questions.
So I thought other people probably have the same
questions. They talk about that and talk
about the headline that you may find interesting and even more
(00:24):
interesting to me. This is episode 8686.
Thanks for being with me. I am so excited.
We're getting closer to 100 all the time, so we're going to
celebrate that 100th episode. I'd love your ideas about what
we should do. So got an idea, let me know, but
it's going to be going to be a party.
(00:44):
I'm I am so excited about being able to share this with you.
Hopefully it's helping. Hopefully it's helping to
demystify, you know, some of those issues, legal issues that
can be so confusing. And I do hope that it leads to
you and your loved ones being better prepared as they age.
So today we're going to talk about a couple issues.
(01:07):
As I said, first, the probate process or the process, the
timeline, right? How long is it going to take?
It's slow folks, but I want to talk about some of the specifics
and that's if there's nothing wrong.
So if there's some pitfalls, those troubles can lead to even
additional delays, changes, sometimes even reductions in the
(01:30):
amount of money that's availablein the estate for beneficiaries.
If you're one that that would include you.
So also want to talk about will contest challenges to wills, who
can contest it right and who can't and what's involved with
doing that. Good, good questions on these
issues. So I want to tackle those.
(01:51):
And finally, I had a question about capacity, you know,
otherwise known as competency, right?
You got your sound mind, you're able to make decisions and
that's a real complex issue it can be and it relates to your
ability to make a will right, powers of attorney and other
(02:11):
estate planning documents, you know, especially if there's
already been some kind of diagnosis.
So it's not impossible, but it can be ripe for potential
contest. So I really want to touch on
some of that and talk about someof the things I do to try to
deal with that issue. So, but first, we'll have a
breaking headline for you Belates back to you know how I
(02:35):
feel about scams, right? Well, Publishers Clearing House
good old Ed McMahon. They have filed bankruptcy in
the bankruptcy court for the Southern District of New York
and they were recently purchasedby another another owner.
(02:55):
But the past debts are now in bankruptcy, and they're
reporting liabilities between 50and $100 million.
Unfortunately, as you might expect, it means some of the
past winners may now be losers because of the bankruptcy.
Losers in terms of getting theirmoney, especially those forever
(03:20):
prize people that are out there,you know, the ones that got a
check every week for the rest oftheir lives.
Well, they may not be receiving any further payouts.
It's all part of the bankruptcy issue.
But like I said, Publishers Clearing House, LLC as we knew
it was sold, so it has new ownership and it's often times
(03:44):
something scammers use. And that's why I'm relating it
back to scams because they will misrepresent themselves.
Imagine that. And a lot of times they tell
people, especially older people that they're targeting that
they're calling from Publishers Clearing House.
That still has a lot of credibility out there.
So I think, you know, a company that shows that they're picking
(04:05):
up a check and bringing it to your house sounds more
believable that they would be reaching out to you.
Perhaps. Let me know what you think of
that. I, I do value your opinion when
it comes to these things. So, but Publishers Clearing
House, you know, they've, they've had some issues back in
2023, the Federal Trade Commission ordered the company
(04:25):
to refund about 8 and 18 and a half, $1,000,000 to consumers.
So I'm sure that didn't help. They were accused of some
deceptive marketing. It the Federal Trade Commission
is the, is the agency, the government agency that regulates
those things and including scams.
(04:46):
Not saying this is a scam, of course, but it is often
connected to that. And the company reported revenue
had fallen from about $879 million back in 2018 to just
181,000,000. So that's a big, big steep
reduction. So those winners are now
(05:09):
classified as what are known as general unsecured creditors in
the bankruptcy case. And that just means anything
that's available is split pro rata.
Everybody gets the same share. If they're not any priority
creditors, which there may be, Idon't know.
But you know, maybe a good argument for if you did win
(05:32):
something like this, taking a lump sum payment, right?
What do you think? In any event, be especially
careful because those scammers misrepresent themselves as
Publishers Clearing House. Just be aware of that.
So all right, I want to talk about some of the issues that I
(05:54):
mentioned, and the first one of those let me see here is
probate. What is probate?
I will tell you, probate is slow.
It's slow because there are deadlines that have to be met.
I'm going to talk about a coupleof those, but it's slow.
(06:17):
Also, even getting an appointment, it can be weeks
after somebody dies before you have an appointment.
And that's that's just the norm because you get in a line of
queue and you know, you've everybody's got their petition
ready to provide to the court, but you got to wait your turn.
(06:39):
So, and that's important. The reason I wanted to mention
that was because say there's a mortgage, say their utility
payments, say they're other costs that need to be paid,
maintained. So there's not a default or
foreclosure. You know, the personal
representative is usually the one that the executor that that
(07:00):
takes this on. But in order to keep those
things current while you're waiting, you know, to get into
court, that requires often timesthat they've got to advance
those funds because the other bank accounts, things that don't
have beneficiaries on them aren't doing.
They're all frozen. And you can't get into those
until the court issues letters to the personal representative.
(07:25):
That's something that comes as asurprise to many people because
that can be expensive. I just, you know, was in court
earlier today and we had a reimbursement motion to a
personal representative. Hey, it totaled $30,000.
That's, that's not a normal amount that I normally see, but
there were a lot of costs that were advanced in this case,
(07:49):
obviously. So just be wary of that.
You know, if you are appointed as executor or personal
representative, that may be partof what you're called to do.
So when you finally get an appointment, you know it's
usually 5 weeks out, something like that.
You are going to need to have a lawyer and you are going to need
(08:12):
to have a petition which would be drafted by that lawyer and
attach the original last will and testament.
You need the original in order for that to be probated here.
If you don't have the original, then you got to file another
action to prove that the guy whomade the will didn't revoke it.
There's a presumption that they tore it up.
(08:35):
So make sure to maintain your original last will and
testament. What if somebody has it and
won't turn it over to you? You can compel the court for
turnover. You know, there's really no
affirmative duty to turn it over.
But I will say destruction or intentional concealment, you
(08:55):
know, not hiding it, pretending it's not there, that can be a
serious felony. Something to think about the
court when it, when it does havethat initial hearing, really the
clerk and master will determine whether the will is valid.
If it's not, there are times when I've been able to cure it
(09:19):
or it may be unenforceable. So, you know, I've touched on
this before, but it's important to not do it yourself Will, I've
got an episode on that. You might want to go back and
listen to that. But do it yourself wills, you
think you're saving money, but you may be creating more
problems down the road. That's the truth.
(09:40):
So if you do find or the court does find that the will is valid
and you are qualified as the personal representative, then
letters testamentary will be issued to you.
That is your license to act on behalf of the estate.
So I have a couple other points that I wanted to make, but I
(10:02):
think maybe I'll take a break before I do that.
So stick with me, I'll be right back.
So we are talking probate, What's involved?
Why does it take so long? How long does it take?
(10:23):
And here's another question I hear.
Who can start probate? You know, it takes a while to
get in court most times. So you may be antsy thinking,
why hasn't anybody created probate?
What's going on? Well, it may be that they're
waiting for that appointment in court, but what if they're just
continued delays and nobody files, nobody creates the
(10:46):
estate. Who can who can do that?
Is there alternatives? Well, you know, of course, if
someone's named as the executor in a will, that makes sense,
doesn't it? Sometimes they're alternates.
So I always think alternates areimportant.
But if there's an alternate in the will and the primary can't
serve, the alternate can file heirs at law.
(11:11):
Those are the legal heirs. If there wasn't a will, you know
they can, they can file, they can petition the court, but they
need to prove they have standing, you know, that they're
somehow have a pecuniary or financial interest in the estate
creditors. Some creditors have priority
claims like Tenncare, and they can even set aside conveyances.
(11:35):
If someone doesn't file, they know there's a claim out there.
They can start a probate. So it's important to know, as I
said, the letters testamentary are usually what are issued to
whoever is appointed as the personal representative.
And after that, there's a noticeperiod, due process, right?
(12:00):
Notice to both the creditors that may be out there and the
beneficiaries. And that includes the ones that
are named in the will and those heirs at law that I mentioned
that might inherit if there wasn't a will.
They all need to have notice. There was a notice period
(12:20):
statutorily in Tennessee. Statutorily.
Boy, that's a big word. Four months in the newspaper,
four months to file a claim. Timely claim.
You can object to claims is not being timely.
But hey, we're talking more, more time, right?
So this is all time after the probate's created when you're
(12:45):
really just waiting to satisfy some of these initial
requirements. So if you don't see a lot of
activity at the beginning, this may be why.
So it's just not not a fast process.
So if the personal representative, same thing as
executor is appointed and those letters are issued, they should
(13:11):
and they may start marshalling or collecting assets that belong
to the estate and those assets property, whether it's money,
other property, they have to be pulled together and protected by
the personal representative. So money gets put into an estate
(13:32):
account. And like I said, the it's
subject to the administrative process.
And all through this period, youhave to ask the court for orders
authorizing the personal representative to do things so
that that's a notice period too.But lot of times, you know, say
(13:54):
they've got to sell real estate,something like that.
You've got to ask the court for permission to show that the sale
is reasonable and fair. So all as I said, all these
things take time, but what what if you believe that the personal
representative is up to some hanky panky is taking property
(14:16):
or misusing funds? It happens and you can request
an inventory from the court. You can even seek more serious
relief, but it's a serious issue.
It's called defalcation. Defalcation, Easy for me to say.
We've had folks, personal representatives who have
(14:40):
absconded, ran away with money that that's not good.
But it happens and the court hasput some other things in place
because of those things happening to try to protect the
assets, especially when it comesto sale of real estate.
That money gets put into the court now, at least here.
(15:02):
And I think that makes sense. It protects it for everybody
involved. So before you get your money, I
just wanted to talk about that because it's probably the most
important thing that you're interested in.
The personal representative has to satisfy any claims.
That means the estate has to be solvent.
(15:23):
It has to have money in order topay those claims.
They can object to those if it'sunsecured, secured collateral
and property or even priority claims like the IRS, right and
Tenncare. All those things need to get
resolved. And once all that's done and
(15:44):
once we meet a one year statute of limitations on claims, then
there can be payment of any court costs.
Attorneys fees are usually part of the expense on the probated
estate and whatever is leftover then gets distributed pursuant
(16:05):
to the will. So that's how that works.
It is not not a speedy process. So I hope that helps.
You know, it is important to to have communication.
So those of you out there that are personal representatives or
expect to be best way to avoid an issue is to communicate with
(16:29):
the other beneficiaries because otherwise they're going to sit
there and think and you know, itcan create thoughts that you're
doing something that's not kosher.
So when in doubt, maintain communication because you really
are representing the estate and not you, especially if you're a
(16:50):
beneficiary, you are not representing you.
So issue 2 kind of relates to wills and that's contest
challenges to wills, you know, happens, who can do it, who has
the right to do that and who can't, Why it matters, you know
it. It does matter too what type of
(17:13):
probate you file. Most people don't know.
They're different types of probate and, and what's required
if you do contest a will. You need to know these things
before you initiate anything like that.
So #1 in order to contest a willhere in Tennessee, you must have
(17:35):
standing. So that that's a simple legal
term, which means, like I said, a pecuniary interest in the
estate show that you've got a a stake, a financial stake and a
valid ground for contest so thatbefore anything else happens,
you. That's the process.
And oftentimes the the cause of a contest can be an allegation
(18:01):
that, you know, mom and dad or whoever made the will didn't
have the mental capacity to do it.
They didn't understand what theywere doing.
They were influenced by someone else undue influence that there
was fraud. Maybe they signed it and didn't
think it was a will. You know, you got to prove all
this, of course, or pressure to to give something to someone and
(18:24):
not another. All these things are causes of
action. Once you prove that you you've
got the standing and once the will is admitted to probate,
you've got to post a bond to cover the court costs if you
lose, right? And it's litigation, it's
creating a lawsuit. That is a slow and expensive
(18:48):
process. I know with my wills that I
draft, there are provisions in there to deal with contests so
that they're not, you know, bogus.
You know, at least you've got you've got an auntie that you've
got to got to hold up to. So if you really think there is
something there, you know, therecan be provisions in there that
(19:11):
say you're forfeiting your shareunder the will.
So better, better be successful or not, right.
It's not an easy process, but, but I thought it was important
to touch on that. And you know, those types of
things happen. There's people that get
influenced. I mentioned capacity earlier.
(19:32):
You know, if someone doesn't have the capacity, that may be
an issue. So important stuff.
And like I said, you're going toneed evidence, right?
You need evidence to prove your case and it is litigation.
I had a contest that lasted the better part of two plus years.
(19:56):
And there was another dispute related to family real estate
that lasted five years. So there was 2 lawsuits and you
can imagine how expensive that was.
Went all the way to a jury. So there is a long road, long
road. So let's see, what did I say?
(20:17):
I was going to talk about 20 capacity, right?
That's another hard issue, but one that people ask about a lot.
You know, you know, the thing I thought was interesting is of
course you go out, you have to have a sound mind, the ability
to know you're making a will, that you're disposing of your
assets, that you know, you've got the ability to do all that
(20:40):
and you know you're making a will.
But even if you've had a diagnosis, don't necessarily
rule out being able to make a will thereafter.
I've got people that come in. Oftentimes that's the reason
they come in, because maybe theygot diagnosed with some form of
dementia, Parkinson's, any of those types of things, and they
(21:04):
want to get their affairs in order.
Well, the question of capacity, of course, would come up and we
do things like getting sworn statements from the treating
physicians, things like that, that affirm that the person has
been diagnosed but has the capacity, the competency to make
(21:26):
that document. So, you know, it's good to build
a defense in advance for what you're doing.
It settles my my spirit too, that, you know, I know this
person knows what they're doing.You know, a lot of times you can
just tell, but there's been sometimes where I've said, I'm
sorry, you know, we can't help you.
(21:47):
But but if you, you know, don't rule it out just because you've
been diagnosed, don't waste timethough, you know, don't delay.
And that goes for powers of attorney and all those things.
So you need capacity in order tomake those documents.
And it's just because they don'twant you to be taken advantage
(22:08):
of, right? So that let me see here, I would
just want to make sure that I have all the information I
wanted to give you. So if you're interested, you
know, if you've got testamentarycapacity, as I said, the person,
there's some elements as they call them under the law, they
(22:31):
have to understand the act of making a will.
They have to understand they're creating a legal document that
will dispose of their property after their death and understand
what that means, the effects of doing so.
They have to understand the property they own and its value.
Right? That just makes sense.
(22:52):
They've got to be aware of the natural objects of their bounty.
What in the world does that mean?
It means that they need to know who their potential heirs are,
their children, their spouse, other family members, whatever
the circumstance is. So they need to understand that
(23:16):
relationship and I have to be able to make a rational plan for
distributing that property. That is the inside scoop on
capacity. So I think these issues are
interesting. And like I said, I, I talked
about these things specifically today because I saw a lot of
(23:40):
questions about them. You know, most of the time
people ask questions, Hey, I've got this scenario, so and so's
doing this. What should I do?
Can I challenge it? You know what, what are my
rights, those types of things. And that's what lawyers really
are able to help you with. So when in doubt, always reach
(24:00):
out to a lawyer. You can reach out to me, but if
you have questions, those are interesting.
Of course, I don't know the specifics of any of these
circumstances and that can impact, you know, what the
actual legal advice might be in a given scenario.
These are, this is just meant tobe general, general advice, but
(24:21):
it gives you more of an idea of,you know, what's involved, the
scope and and what you're going to be required to prove right.
So I think that's helpful. In any event, I hope this has
been helpful to you. I always like talking about
these things. If you've got a question, I
encourage you to reach out. Maybe make a future episode.
(24:44):
Hey, Speaking of episodes, if you have not already liked and
subscribed, I know you hear thisall the time, but it's really
important, OK? So if you haven't done it,
please do it because it helps meto reach more people.
It's how social media works and we've got to do this jump
through the hoops in order to besuccessful.
(25:05):
So please do it if you haven't and share this with a friend,
OK, Share it with a friend. I think this information is
important. And there's a whole library 86
episodes now that are available on all kinds of different
topics. So there's there's help out
there and it'd be great if you could share.
(25:26):
I appreciate you. Well, that's it for today and I
look forward to sharing more about my special secret project
that I have in the works. And you're going to be excited
about it too, I think. So take care and I'll see you
next time.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies!
The Breakfast Club
The World's Most Dangerous Morning Show, The Breakfast Club, With DJ Envy, Jess Hilarious, And Charlamagne Tha God!