FAQ

Elder Law 

About Elder Law

Elder Law is a specialty of law that caters to the unique needs of older clients and those with long-term illnesses.  Elder law encompasses specialized estate planning documents (wills, trusts, power of attorney, etc.), determining the right care strategy and planning for ways to pay for that needed long-term care.  Anticipating eligibility for VA or TennCare benefits,  in addition to any other services or resources available in our community, are just a few of the opportunities we exam as part of the expertise we offer our clients.  Advance planning for eligibility to many of these services is important if you wish to stretch your personal resources and protect your assets.

Elder Law attorneys are advocates for the elderly and their loved ones.  We specialize in providing counsel and strategies to help protect you and your family as you age.

 

The Law Offices of  Nancy Cogar focuses on a wide range of legal matters affecting aging and older individuals, such as:

  • Estate Planning
  • Long-Term Care and Crisis Planning for Health Care Issues
  • Managing Assisted Living and Nursing Home Care Costs
  • Preparing for Assisted Living and Nursing Home Care Costs
  • Assistance with At-Home and Community-Based Health Care
  • Conservatorships
  • Special Needs Planning
  • Medicaid eligibility
  • Probate and Trust Administration

…..and other important and complex matters related to an aging population.

 

How Can An Elder Law Attorney Help Me!

An Elder Law Attorney can help with any as the following:

  • Discuss the importance of wills and estate planning, including the need for specialized power of attorney documents to meet your future needs
  •  Specialized estate planning to assure the care of minors and those with special needs.
  • Trust Planning , Protection and Administration
  • Probate Proceedings
  •  Draft personalized General Durable Power of Attorney to meet your specific needs and comfort level
  • Provide guidance with healthcare planning, including long-term care options, patient rights, Medicaid eligibility issues and customized Health Care Power of Attorney
  • Long-term estate planning and assistance with asset protection strategies
  • Strong representation at every stage of complex conservatorship matters
  • Assistance with transition and placement in long-term care facilities

Collect inventory, the following documents and/or property preparing for Probate or other administration of your loved one’s estate:

  • Death certificate (certified copies will be needed – get thesefrom the funeral home)
  • Original Will and/or Trust documents
  • Insurance policies and stock certificates (if any)
  • Bank account and/or pension and retirement statements
  • Credit card statements (notify of death to avoid potentialidentity theft)
  • Motor Vehicle and/or Mobile Home Titles
  • Real estate records including any out-of-state property
  • Tax returns
  • Contents of any safe deposit boxes
  • Protect keys to real property and automobiles
  • Contact Social Security Administration & Pension office
  • Contact a licensed attorney for help with administration.

The Probate Process:

To begin a probate of an individual’s estate in Tennessee, the Personal Representative or Executor must file a Petition for Probate with the Court. Probates are under the jurisdiction (control) of the Chancery Court in Hamilton County. The Petition for Probate should include the original Last Will and Testament of your loved one (referred to by the Court as the decedent). This type of Petition filed with a will is known as Testate Administration. Generally, the provisions of a valid will shall be enforced as the decedent’s intent as part of the Testate administration. If there is no will, the Personal Representative may file a Petition for Intestate Administration of the Estate. Intestate administration is controlled by Tennessee law’s schedule of descent and distribution. Basically, in the absence of a will. the law has created a guideline to control who gets what share of an individual’s estate. This schedule somewhat resembles a family tree. For an explanation of Tennessee’s schedule of intestacy distribution go to Tenn. Code Ann. §32-1-104.

Making Sense of the Probate Process:

After the Petition is filed and accepted and the appropriate filing fees are paid to the Court, the Clerk and Master will issue an order establishing the probate and setting some initial deadlines for items to be completed by the Personal Representative or Executor. The Clerk and Master will customarily issue what are known as Letters Testamentary (if there is a will) or Letters of Administration (if there is no will). These letters from the Court will authorize the Personal Representative or Executor to begin his/her duties in administering the estate.

Notice: Notice must be given that a probate estate has been established. This notice is made to heirs and to creditors. The notice serves to start the time for potential creditors to file claims against the estate for debts that may have been owed prior to your loved one’s death. As the duly-appointed Personal Representative/Executor you are required to give notice to all heirs. This includes heirs who may receive under the decedent’s will or would receive under Tennessee’s intestate succession if there is or was not a will. The Personal Representative/Executor must file a sworn affidavit with the Court that this notice has been done.

Claims: In Tennessee creditors have 4 months from the date of publication of the notice to file claims in the estate. The Personal Representative/Executor can object or file “exceptions” to a claim and those claims can be denied by the Court upon a finding of good cause. The Personal Representative/Executor must also resolve or satisfy all claims before a Probate can be completed. Some claims are unsecured like credit cards.

Others may have priority over unsecured claims. Funeral costs are one such priority claim. There is one creditor that has a SUPER-PRIORITY status: TennCare. TennCare is required to seek recovery for any government Medicaid assistance that your loved one may have received as part of their end of life care. A release from TennCare is another requirement that must be filed with the Court before an estate can be closed. TennCare claims can be complex, especially if there is a surviving spouse. More information on these types of circumstances is available upon request. Tennessee has a statute of limitations for claims on the one-year anniversary of a decedent’s death.

Marshalling of Assets & Inventory: A Personal Representative/Executor also has a fiduciary duty to collect and protect all of the decedent’s assets that are property of his/her estate. A will may specifically provide that an inventory of these assets must be filed with the Court. Other wills may waive such an inventory.

Assets of the Estate: It is critical that a Personal Representative/Executor NOT commingle estate assets with others. A designated estate account should be opened which will have its own unique tax identification number called an EIN number. Barring a few limited exceptions, all of the liquid estate’s assets should remain in this account until a final distribution is authorized.

If a house or other real property is to be sold to benefit the estate, it will require an Order of the Probate Court before being sold. Most title companies will require a copy of the Court’s Order at closing. Some Courts, including Hamilton County’s Chancery Court have also started to require that the sale proceeds be paid into the Registry of the Court, or in the alternative that a bond be paid to secure the proceeds. It there is no requirement for Court approval then the sale proceeds for real property should be deposited into the designated estate account.
Are all assets probate assets? Not necessarily. Certain assets may not constitute probate assets. These include the following:

  • Assets with ownership titled in the name of a Trust
  • Life Insurance policies paid to a specific beneficiary and not the estate
  • Accounts that include a POD or “Payable on Death”provision
  • Jointly held property including property held as JointTenants with rights of survivorship or Tenancy by theEntireties
  • Other pension and/or retirement benefits that have beneficiary designation
  • Inventory/protect assets of the estate
  • Satisfy/Resolve all claims of the estate;
  • Satisfy Court and Attorney costs;
  • Make distributions in accordance with the Will
  • Final accountings
  • File tax returns, if necessary

It depends. Generally, an Order closing a probate estate is entered by the Court after the estate has been opened for a year, all claims have been resolved and all duties have been completed. This circumstance may change depending on the date of death of the decedent and the timing of when the probate was started.

Maybe. Your loved one may have created a Trust as part of an estate planning package. If the assets were successfully re-titled in the name of the Trust prior to your loved one’s death, then there may be no need for probate administration. However, if this is the case a Trust administration may be required which still imposes some strict fiduciary requirements on the Trustee. More information can be provided about Trust administration upon request.

Small Estates: Tennessee law provides for a simpler probate procedure in the event that a loved one dies with less than $50,000.00 in assets. In this situation, a small estate can be filed. The Petitioner is known as the Affiant and makes an oath to the Court to pay and resolve all known valid debts and distribute assets correctly to relevant heirs. A small estate usually requires just one appearance in Court.

Will Contests: There are more so-called “blended” families today and conflicts among these family members are leading to an increase in the number of will contests and challenges filed in Probate Court. Some individuals don’t take time to prepare or update an estate plan to deal with stepchildren or a new spouse and it can lead to conflicts. Challenges as to the will maker’s (testator’s) capacity are also on the rise. Following the formality requirements when drafting a will can help in these circumstances.

Lost Will Proceedings: Unfortunately, if an original will cannot be located and there is only a copy of the will available, Tennessee law will presume that the original will was revoked by the will maker (testator). A lost will proceeding must be filed in Probate Court in order to prove a copy is a valid will which can be admitted to probate. This proceeding is much like a lawsuit and can be time consuming and expensive.

It depends. A simple probate can still be time consuming and cost several thousand dollars to complete. A more complex estate may cost more, especially if it requires Court intervention or action. The Courts in Tennessee have established some guidelines for probate costs. Generally, a probate administration should cost between 5-10% of the total value of the estate. Remember these costs to the Estate as part of the administration.