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Under Tennessee law, when are Gifts to a Child of the Deceased Individual Considered an Advance on any Recovery of a Child's Intestate (Without a Will) Share?

Posted on Dec 2 2013 10:01PM by Attorney, Jason A. Lee

Sometimes gifts to children during a decedent's life are considered an advance on an intestate (when the deceased dies without a will) share under specific circumstances.  If the gift is considered an advance, then the amount a child receives in an intestate situation is reduced by the advanced amount.  T.C.A. § 31-5-101 provides that property given during the decedent's lifetime to a child should be treated as an “advance” if one or two circumstances are present:

 

(a) If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during the decedent's lifetime to a child of the decedent is treated as an advancement against the child's intestate share only if:

(1) The decedent declared in a contemporaneous writing, or the child acknowledged in writing, that the gift is an advancement; or

(2) The decedent's contemporaneous writing or the child's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

 

The value of the advancement is determined under T.C.A. § 31-5-101(b) at the time the child came into possession of or enjoyment of the property or the time of the decedent's death, whichever comes first.  Based on the language of the statute, it must clearly be the intent of the parties to consider the gift as an advance in order to cause it to reduce the intestate share the child receives. 

 

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TAGS: Intestate, Tennessee Probate Law
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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
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Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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