Failure to go through probate

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Johnnyappleseed
Posts: 14
Joined: Mon Mar 16, 2009 1:22 pm

Failure to go through probate

Post by Johnnyappleseed »

I have a good friend who's husband passed away almost two years ago. No will existed. I know laws are based upon the state, but hoping for some general knowledge. She lived in Tennessee when her husband passed and now resides in Alabama. House was jointly owned, but some assets was listed only in his name. She only just found out through her accountant that she should have gone through probate. She is seekinh out advice of an attorney, but has not met him/her yet.

Question: what is likely to happen now? It seems that sheets that were jointly owned can pass to her without probate. Do creditors which loaned money only to him have a claim on the joint assets? Any other thoughts to consider?
bsteiner
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Location: NYC/NJ/FL

Re: Failure to go through probate

Post by bsteiner »

You can't probate the Will if there isn't a Will. However, she can bring an administration proceeding, which is similar.

Jointly owned property passes to the surviving joint owner by operation of law.

Property in his name alone passes in accordance with the state's intestacy law. If he also lived in Tennessee at the time of his death, here's the Tennessee statute: https://codes.findlaw.com/tn/title-31-d ... 2-104.html.

Tennessee allows spouses to own assets as tenants by the entirety, which should provide protection for assets owned that way against the deceased spouse's creditors. She should check with her Tennessee counsel to determine whether any or all of the joint property was owned as tenants by the entirety, and the extent to which it might be protected against his creditors. She should also check with her Tennessee counsel as to whether Tennessee provides any other exemptions from creditors. Finally, she should check with her Tennessee counsel as to whether Tennessee has any special limitations on the time for creditors to bring claims against estates of decedents.
senex
Posts: 604
Joined: Wed Dec 13, 2017 4:38 pm

Re: Failure to go through probate

Post by senex »

Some additional thoughts:

1. Not sure about TN, but in the state I know, there is no time limit to open probate. (bsteiner is an experienced attorney who uses the "strict" definition of probate, which comes from the latin "to prove," as in "to prove the validity of the will"; but some states use the word "probate" to mean estate administration, whether or not there is a will)

2. I would start by estimating the account values, the credit exposure, and the court + lawyer fees before deciding if/how to proceed. Are you talking 4 figures, 5 figures, 6+ figures?

3. As bsteiner said, understanding creditor laws will probably require a TN-specific attorney. Which will cost money. Hence my #2 (the fact that the accounts were neglected for several years makes me suspect the dollar amounts may be small).
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FIREchief
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Re: Failure to go through probate

Post by FIREchief »

Johnnyappleseed wrote: Fri Sep 18, 2020 10:32 am House was jointly owned, but some assets was listed only in his name.
Were these individually owned assets significant? Were they the types of assets formally titled in his name (e.g. financial accounts, vehicles, etc.) or un-titled personal property (e.g. collectibles)? Has she checked to see if Tennessee has an affidavit process/threshold that she might be able to use in lieu of probate?
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.
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