Heir Rights (TN)
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As an heir, you likely have questions about the inheritance process in TN, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under TN Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, TN estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- TN Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see TN Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See TN Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
TN Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Tennessee, there are several ways to avoid full probate: small estate affidavit, muniment of title, or affidavit of heirship. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a Tennessee estate contains personal property worth <$50,000 in aggregate, you can use the small estate process to settle an estate with almost no court involvement.
Requirements
To use the small estate process, the following conditions must be met:
- The estate's personal property is worth <$50K in total
- At least 45 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In determining the value of the personal property, you should value assets as of the date of death, and ignore any unsecured debts. Do not include real estate, or any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate process:
- Submit a Small Estate Affidavit to the court (see below)
- The court will schedule and hold a hearing to see if there are any objections, and certify the affidavit
- You can then use a copy of the court-certified affidavit to take possession of estate assets
- Note that real estate cannot be transferred via small estate affidavit
- Settle the estate in the normal way (pay debts, distribute remaining assets)
Affidavit Form
There is no particular affidavit form mandated by law, but some courthouses require the use of their particular version, so best to identify the court as per below, then use whatever form they prefer. Here is the Shelby County Small Estate Affidavit Form, for example, and if the court has no preferred form, you can just use this generic TN Small Estate Affidavit.
You may be able to attach an EstateExec Inventory Report rather than manually filling in the inventory tables in these forms.
Regardless of the particular form, a small estate affidavit must:
- State whether or not there is a will
- List all estate assets and debts
- Include the name and address of every heir (i.e., people who will inherit from the estate)
When submitting the affidavit to the court, attach a certified copy of the death certificate and the original will (if one exists).
See Tenn. Code Ann. § 30-4-102 et seq.
Muniment of Title
A Muniment of Title is similar to a Small Estate Affidavit, but has no limit on estate value, and can be used to transfer both real and personal property (although in practice it is primarily used for real property).
Requirements
You can use a Muniment of Title if a valid will exists.
Process
To settle an estate via a Muniment of Title:
- Submit to the court a Petition for Probate of Will for the purpose of establishing a Muniment of Title (see below)
- The court will schedule and hold a hearing to see if there are any objections, and issue an Order of Probate for Muniment of Title
- Use the certified Order to collect estate assets
- Settle the estate in the normal way (pay debts, distribute remaining assets)
Muniment of Title Application
Check with your local court (see below) to determine if they have a preferred application form, or you can create one yourself based on this example Petition for Probate of Will for Muniment of Title Hamilton County Form.
Attach a certified death certificate and the original will to the application.
See Tenn. Code Ann. § 32-2-111.
Affidavit of Heirship
Alternately, you can use an Affidavit of Heirship to lay claim to real property. This is typically used in the case where there is no will, and is not as strong as the other approaches mentioned on this page. The affidavit must be completed by a person who knew the decedent well, but who does not stand to inherit anything. Once the affidavit has been signed, notarized, and recorded in the deed records of the County, most title companies and real estate companies will allow the heirs to sell the property.
See Tenn. Code Ann. § 30-2-712.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in TN, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in TN, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow TN probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In Tennessee, probate is normally handled by the Clerk and Master of the applicable Chancery Court (Tennessee's 95 counties are divided into 31 judicial districts, each with its own Chancery Court). If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a link to the appropriate court here.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the TN estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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