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Probate Court Clerk

Frequently Asked Questions

Q1

What is a fiduciary?

A1

A fiduciary is a person having a legal duty created by his or her undertaking to act primarily for another’s benefit in matters connected with the undertaking. For example, an executor of an estate is a fiduciary; an administrator of an estate is a fiduciary; a conservator of an incompetent person is a fiduciary; a guardian of a minor child is a fiduciary; and a trustee of a trust is a fiduciary.

   

Q2

What is the difference between an executor and an administrator of a deceased person’s estate?

A2

A personal representative is a person appointed to settle the affairs of the deceased. An executor (or executrix) is a personal representative named in a Will. An administrator (or administratrix) is a personal representative appointed by the court for a decedent who dies without a Will, who fails to name an executor in the Will, who names an executor lacking the capacity to serve, or who writes a Will that the court refuses to admit to probate.

   

Q3

What does it mean to say that a person dies either testate or intestate?

A3

A person who dies after having made a valid Will and without having revoked the Will before dying is said to have died testate. In that case, the terms and provisions of the Will control the disposition and distribution of assets. A person who dies without leaving behind a validly executed Will is said to have died intestate, in which case statutory law will determine the distribution of the property among heirs or next of kin.

   

Q4

What does it mean to “admit a Will to probate” or “to probate a Will”?

A4

“Admitting a Will to probate” or “probating a Will” is the process of proving or establishing the validity of the Will and carrying out the administration of the estate through a process supervised by the Probate Court. Until the Probate Court enters an Order proving the Will or establishing its validity, the Will has no legal validity.

   

Q5

A relative has died and we have located what appears to be their Will. Do we need to probate the Will?

A5

This is the most common question asked of the Probate Court Clerk’s Office, and, unfortunately, it is a question which we cannot answer because it calls for a legal conclusion and the Clerk’s office can not give legal advice. You should consult an attorney or elsewhere seek legal advice to answer the question of whether or not a particular Will needs to be probated.

   

Q6

Do I have to have an attorney in Probate Court?

A6

If you are seeking to be appointed as a fiduciary under the supervision of the Davidson County Probate Court (i.e., executor, administrator, conservator, guardian or trustee), then the answer to this question is yes - - you must be represented by legal counsel. The Court requires this because, as a fiduciary, you have legal duties and obligations to other persons other than just to yourself. The Court specifically allows adults to represent themselves in a petition to change their own name although you may retain a lawyer if you so desire. This does not apply to petitions to change a child’s name. In addition, the Court specifically allows petitioners to proceed without an attorney in opening a small estate under the Tennessee Small Estate Act although, again, it may be advisable to have an attorney depending upon your particular circumstances. Otherwise, a person has the right to represent oneself in legal proceedings although the decision to do so may not be advisable. Please be advised, however, that the Clerk’s office cannot offer you legal advice or assistance. For additional information, please see Guidelines for Tennessee Court Clerks Who Assist Self-Represented Persons.

   

Q7

How can I make a request for a foreign or sign language interpreter?

A7

To make a request for a foreign or sign language interpreter, click here.