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Can an out-of-state will be probated in Tennessee?

Posted on Mar 27 2013 4:04PM by Attorney, Jason A. Lee

Tennessee law provides that wills that are executed outside of Tennessee are valid in three possible scenarios.  The first is if the will complied with the execution requirements for a will under Tennessee law.  The second is if the will complied with the execution requirements for the state where the will was executed.  The third is if the will complied with the execution requirements of the testator’s domicile at the time of execution. 

 

T.C.A. § 32-1-107 provides as follows:

 

A will executed outside this state in a manner prescribed by §§ 32-1-101 -- 32-1-108, inclusive, or a written will executed outside this state in a manner prescribed by the law of the place of its execution or by the law of the testator's domicile at the time of its execution, shall have the same force and effect in this state as if executed in this state in compliance with those sections.

 

As a result, a will that is drafted in another state can be valid in Tennessee as long as it complies with one of the three options in this statute.  Also, under option number three, it is important to be able to determine a persons “domicile” under Tennessee law to figure out what jurisdiction is referred to in this statute.  The Tennessee Court of Appeals has discussed Tennessee law on the determination of a persons domicile as follows: 

 

when used to refer to a person's domicile or legal residence, the term indicates a particular place where a person has a permanent home and to which the person has a concurrent intention to return and to remain.  A person may have more than one residence but may have only one domicile or legal residence.

 

A person cannot acquire a new domicile or legal residence without first abandoning another.  Accordingly, to change domicile or legal residence, a person must: (1) actually change his or her residence to a new place; (2) intend to abandon his or her old domicile; and (3) intend to establish a new domicile at the new residence.  A person who is mentally incompetent cannot voluntarily change domicile or legal residence because he or she does not have the requisite intent either to abandon their old domicile or to acquire a new one.

(citations to case law removed) In re Conservatorship of Clayton, 914, S.W.2d 84 (Tenn. Ct. App. 1994).  If option number 3 of this statute is going to be relied upon for the probate of a will in Tennessee, then the law of the domicile state on proper execution of a will must be reviewed to determine proper compliance.


TAGS: Wills, Witnesses to will, Execution
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Author

Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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