Typically, when a person passes away and leaves real estate or personal property behind, his or her legal heirs must go through the process of probate. During probate, an executor (if there is a will) or personal representative (if there is not a will) is appointed by the judge. That person is then tasked with the responsibility of identifying the deceased person’s assets, satisfying the decedent’s debts, and disbursing the proceeds according to the will or, when no valid will exists, according to the law of intestate succession. Fortunately, there are some ways to avoid probate, including the use of an heirship affidavit in some cases. Nashville estate planning lawyer Randy Ratliff handles both large and small estates, including those in which an heirship affidavit is appropriate.
An heirship affidavit is simply a legal document attesting to a relationship with a deceased person or stating a fact pertinent to the determination of who is legally entitled to partake of a decedent’s estate. Tennessee Code Annotated § 30-2-712 provides for an heirship affidavit to be recorded by the register of deeds after it has been properly signed and notarized by the person claiming heirship. In Tennessee, property passes to a deceased person’s heirs immediately upon his or her death. An heirship affidavit puts the public on notice of anyone claiming to be an heir so that the ownership of the decedent’s property can be ascertained without the need for probate.
Because of the possibility of fraud regarding heirship affidavits, the statute also criminalizes a willful, corrupt, and false statement on such a document, making this offense a class E felony under Tennessee law. Additionally, a person who believes that a false affidavit has been filed may file a civil lawsuit in chancery court challenging the validity of the document, provided that he or she does so within six years of the recording of the instrument.Using an Heirship Affidavit for a Tennessee Estate
Heirship affidavits are only effective with regard to real property. The term “real property” has a particular meaning under the law and refers to land or real estate (including buildings on it). An heirship affidavit has no bearing on the passing of personal property (which includes everything other than real property, such as vehicles, cash, bank accounts, household furnishings, jewelry, etc.). There is a limit on the amount of property that can pass through the use of an heirship affidavit. That amount is currently $25,000. If the deceased person left behind real estate worth more than $25,000, an heirship affidavit cannot be used. Instead, a traditional probate of his or her estate will probably be necessary.
An experienced wills and trusts attorney can answer any specific questions that you may have about your loved one’s estate, as well as guide you in your own estate planning efforts. Planning for one’s estate can alleviate much hardship, confusion, and expense for one’s next of kin and other interested parties. There are many tools available, including wills, trusts, and powers of attorney, which can help effectuate one’s final wishes in the most direct and cost-efficient manner possible. Each person’s situation is unique, and it is always best to discuss your estate planning needs with someone who is well-versed in this area of the law and who will take the time to understand your wishes, explain your options, and craft a plan that is suited to your particular circumstances. Too many people rely on one-size-fits-all plans that they find in books or on the internet, often complicating matters and adding unnecessary expenses for those left behind.Contact a Knowledgeable Nashville Attorney to Discuss Your Estate Planning Strategy
The Randy Ratliff Law Offices, PLLC, offers many estate planning options to people throughout Davidson and Williamson Counties. Whether you need a simple estate plan, are considering a complex business succession plan, or are wondering whether Medicaid planning might be advisable, we can help. Just give us a call at 615-656-8282 or contact us online, and we will be glad to set up an appointment for you. We represent clients in Nashville, Cool Springs, Franklin, Brentwood, Antioch, Hermitage, Goodlettsville, Madison, Joelton, and the surrounding areas.