Understanding the Difference Between Common and Solemn Form Probate in Tennessee
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Consult a qualified attorney for personalized guidance.
Detailed Answer
When a person dies in Tennessee leaving assets in their estate, the executor or personal representative must open probate to validate the will (if any) and distribute assets. Tennessee law recognizes two primary probate procedures: common form and solemn form. Both serve to admit a will to probate, but they differ in process, timing, and evidentiary requirements.
Common Form Probate
Common form probate is the standard, streamlined process. It is governed by Tennessee Code Annotated § 30-1-104 and §§ 30-1-105 (T.C.A. § 30-1-104, § 30-1-105).
- Must be initiated within one year after the decedent’s death.
- Petition must include the original will, a certified death certificate, and a list of heirs.
- Notice of probate is sent to interested parties, but the court does not demand formal proof of due execution beyond affidavits from subscribing witnesses.
- Proceeding is typically handled by the clerk of the probate court without a formal hearing unless an objection is raised.
Solemn Form Probate
Solemn form probate is a more formal, evidentiary proceeding for admitting a will. It is outlined in Tennessee Code Annotated § 30-1-106 (T.C.A. § 30-1-106).
- No strict one-year time limit, but courts expect timely filing.
- Requires personal testimony from at least two subscribing witnesses or proof of handwriting and signature by additional evidence.
- Court conducts a formal hearing where witnesses are sworn and cross-examined.
- Final order admitting the will is issued by the judge rather than the clerk.
Key Differences
| Feature | Common Form | Solemn Form |
|---|---|---|
| Time Limit | Within one year of death | No strict statutory deadline |
| Evidence | Affidavits from witnesses | Live testimony under oath |
| Proceeding | Clerk-managed, informal | Judge-managed, formal hearing |
| Complexity | Lower | Higher |
Helpful Hints
- Review the time limits: common form has a one-year window from date of death.
- Gather original will and death certificate before filing.
- Contact subscribing witnesses early to secure affidavits or testimony.
- Consult probate clerks for local filing fees and procedure nuances.
- Consider solemn form if there is any doubt about validity or execution of the will.
- Seek professional advice when estate assets exceed probate bond limits.