Settling Small Estates (TN)
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.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in TN.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in TN.
Finally, in case you're interested, details about handling small estates in other states can be found here: