Tennessee Estate Plans to Keep Real Estate Out of Probate: What Actually Works

If you've been told that probate will destroy your family, drain your bank account, and take years to resolve—take a breath. That's the sales pitch, not the reality.

Yes, there are legitimate tools to keep Tennessee real estate out of probate. Revocable trusts, survivorship deeds, and life estates all work when set up correctly. But here's what most estate planning websites won't tell you: for many Tennessee families, probate is straightforward, affordable, and nothing to lose sleep over.

I'm not saying estate planning doesn't matter. It absolutely does. What I'm saying is that the decision about which tools to use should be based on your actual situation—not on fear.

Let's walk through your real options for handling real estate in your Tennessee estate plan, what each one actually does, and when each one makes sense.

Revocable Living Trusts: The Gold Standard

A revocable living trust is the most flexible way to keep Tennessee real estate out of probate. You create the trust, name yourself as trustee while you're alive, and re-title your property into the trust. When you pass away, your successor trustee handles the property transfer without involving probate court.

Tennessee's Uniform Trust Code under Title 35, Chapter 15 provides the legal framework for this, and it works well—when it's done right.

Here's the catch that most people don't hear about: a trust only works if you actually fund it. That means re-titling your property deed from your personal name into the trust. If you spend thousands on a beautiful trust document and never transfer the deed, congratulations—you just bought expensive stationery. Your property is still going through probate.

I tell every client this upfront. It's not uncommon for families to come in with trusts that were never properly funded. The trust existed on paper. The property was still in Mom's name when she died.

What you need to do if you choose a trust

Re-title the deed from your name to yourself as trustee of your revocable trust (don't worry, we handle that for you). Update your homeowners insurance to reflect trust ownership. If you have a mortgage, federal law under 12 U.S.C. § 1701j-3 generally prevents your lender from calling the loan due just because you transferred to your own living trust. Align related interests like mineral rights so everything matches. And actually maintain the trust—if you buy a new house later and put it in your personal name, we're back to square one.

Transfer-on-Death Deeds: Not an Option in Tennessee, but Now Available in Georgia

Some states let you sign a transfer-on-death deed, sometimes called a TOD deed, that automatically passes property to a named beneficiary when you die. Simple, cheap, no probate.

Tennessee is not one of those states. Neither is Alabama.

As of this writing, neither Tennessee nor Alabama have enacted a statute authorizing TOD or beneficiary deeds for real property. You can set up TOD designations for financial accounts and even vehicle titles under Tenn. Code Ann. § 55-3-120, but not for your house or land.

If you heard about TOD deeds from a friend in Florida or found the idea online, understand that it doesn't apply in Tennessee or in Alabama. For Tennesseans and Alabamians who want that kind of simplicity, a revocable living trust is typically the closest equivalent—but it requires more setup and ongoing attention.

Georgia IS one of those states.

Georgia recently codified transfer-on-death deeds in GA Code § 44-17-1, et. seq. They are an excellent tool to transfer your real property to your children on your death, without the need for a revocable trust.

Joint Ownership With Right of Survivorship

Putting property in joint names with a right of survivorship means the surviving owner automatically inherits full ownership when the other dies. No probate needed for that property.

But Tennessee has a quirk you need to know about. A deed to two or more unmarried people defaults to a tenancy in common unless the deed explicitly includes survivorship language. This is codified in Tenn. Code Ann. § 66-1-106 and § 66-1-107. A tenancy in common does not avoid probate. The deceased person's share passes through their estate.

So if your deed just says "John Smith and Jane Smith" without the right survivorship language, you don't have what you think you have.

Married couples get a better option

Tennessee recognizes tenancy by the entirety for married couples, which includes built-in survivorship rights and additional creditor protection. If you and your spouse own property as tenants by the entirety, the surviving spouse inherits automatically.

Before you add someone to your deed

Adding a child or sibling to your deed to "avoid probate" is one of the most common DIY estate planning moves—and one of the riskiest. When you add someone to your deed, you're creating a current ownership interest. Their creditors can potentially come after your property. You may trigger gift tax implications. You lose the ability to sell or refinance without their signature. And survivorship only avoids probate at the first death—you still need a plan for the survivor's estate.

Life Estate Deeds: Simple but Limited

A life estate deed lets you keep the right to live in and use the property for your lifetime while designating who gets it when you die. At death, the property passes to those remainder beneficiaries without probate.

This can work well for a family home or farm that you want to stay in the family. But there are real limitations. You typically can't sell or refinance without every remainder beneficiary's consent. If your situation changes and you need to downsize, move to assisted living, or just change your mind about who gets the house, you're stuck unless everyone cooperates.

Real Estate Owned by an LLC

If your Tennessee real estate sits inside an LLC, the land itself doesn't change hands when you die. Instead, your estate plan needs to address the transfer of your membership interests in the LLC.

This means coordinating your operating agreement with your estate plan. Your operating agreement should include succession provisions, transfer restrictions, and buy-sell language so your heirs know exactly what happens with the company and the property it owns when you're gone.

The Tennessee Revised LLC Act under Title 48, Chapter 249 governs these entities. If you have real estate in an LLC and your operating agreement doesn't address what happens when a member dies, you've got a gap that needs to be fixed.

This is actually where estate planning and business formation overlap. I set up LLCs for clients and then structure their estate plans around those entities. If you've already got an LLC but haven't connected it to your estate plan, we should talk.

The Honest Question: Do You Even Need to Avoid Probate?

Here's where I differ from most estate planning content on the internet.

Tennessee probate, for the majority of families, is not the nightmare the industry (or other states) has made it out to be. It's time-consuming, yes. There are waiting periods, creditor notice requirements, and a statutory timeline. Your case won't be done before one year from the date of death. That's just the law.

But "time-consuming" is not the same as "devastating."

For many Tennessee estates, probate is paperwork and patience. You file with the court, wait for creditor periods to expire, and distribute the property. It's not contentious unless the people make it contentious. It's also not outrageously expensive for straightforward estates (oftentimes, the same price as a trust).

The real question isn't "how do I avoid probate at all costs?" Instead, you should be asking, "What makes sense for my family, my property, and my situation?"

Sometimes a revocable trust is the right answer. Sometimes joint ownership with proper survivorship language handles it. Sometimes a simple will and normal probate is perfectly fine—and saves you thousands in upfront planning costs.

Tennessee Real Estate Probate-Avoidance Checklist

If you do decide probate avoidance is important for your real estate, here's what needs to happen.

1. Pick the right tool for your situation—revocable trust, survivorship deed, or life estate. Each has trade-offs.
2. If you choose a trust, actually fund it. Record the new deed with the proper trustee language. This step gets skipped more than you'd think.
3. Coordinate everything. Your LLC operating agreement, beneficiary designations on financial accounts, insurance policies, and deeds all need to tell the same story. Conflicts between these documents create expensive problems.
4. Address the practical stuff. Check your mortgage for due-on-sale clauses, which usually aren't an issue for trust transfers under federal law. Update your insurance. Confirm your property tax exemptions still apply.
5. Revisit your plan. Marriage, divorce, new property purchases, new grandchildren—any of these can change what makes sense. An estate plan isn't a set-it-and-forget-it document.

Frequently Asked Questions