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What is a Nuncupative Will in Tennessee?

Posted on Nov 25 2013 10:07AM by Attorney, Jason A. Lee

A nuncupative will is a will that is completed by a person who is in imminent peril of death from illness or otherwise.  The will is only valid if the testator actually died as a result of the impending peril.  T.C.A. § 32-1-106 provides in this entirety as follows:

 

(a) A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:

(1) Declared to be the testator's will by the testator before two (2) disinterested witnesses;

(2) Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and

(3) Submitted for probate within six (6) months after the death of the testator.

(b) The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).

(c) A nuncupative will neither revokes nor changes an existing written will.

 

This type of will is very limited and has very specific requirements that are restrictive.  The nuncupative wil...

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TAGS: Nuncupative Will, Wills Comments [0]
  
 

In Tennessee what are the Requirements for Making a Payment out of a Probate Estate when an Heir cannot be Located?

Posted on Nov 18 2013 9:33AM by Attorney, Jason A. Lee

T.C.A. § 30-2-702 discusses what happens when the personal representative of an estate for a deceased person is ready to make a final report and distribution settlement and an heir cannot be located.  If an individual who is an heir or who is entitled to a distribution from the estate cannot be located then such share must be paid to the state treasurer as discussed in T.C.A. § 30-2-702 which provides as follows:

 

(a) Whenever the personal representative of the estate of any deceased person in this state is ready to make a final report and settlement, and is prevented or precluded from making final settlement, because there is no personal representative of the estate of a deceased distributee to receive the share due that distributee or one (1) or more payees or distributees cannot be located or for any reason refuses to receive the share due that distributee, the personal representative shall pay or deliver the share due any such distributee to the state treasurer, to be handled in accordance with title 66, chapter 29, part 1, relating to unclaimed property, and show the payment or delivery in the report.

…….

(c) If the personal representative of the estate of a deceased person is unable to locate a distributee and that distributee's share of the estate is either personal property of nominal value or a monetary legacy of nominal value, the personal representative may request instructions from the court concerning the amount, if any, which should be spent in locating the distributee and whether the amount spent in locating the distributee should be a general expense of the estate or a charge against the lost distributee's share and the disposition of the property if the distributee cannot be found, which disposition may include the authority to sell any tangible personal property.

 

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TAGS: Probate Process, Tennessee Probate Law Comments [0]
  
 

Can a Healthcare Provider be held Civilly Liable for not Following the Provisions of a Living Will in Tennessee?

Posted on Nov 11 2013 10:34AM by Attorney, Jason A. Lee

A healthcare provider, including a physician, can be held civilly liable for not following the provisions of a living will executed properly under Tennessee law.  T.C.A. § 32-11-108 provides as follows:

 

(a) Any physician or other individual health care provider who cannot in good conscience comply with the provisions of such a living will, on being informed of the declaration, shall so inform the declarant, or if the declarant is not competent, the declarant's next of kin or a legal guardian, and at their option make every reasonable effort to assist in the transfer of the patient to another physician who will comply with the declaration. Any health care provider who fails to make good faith reasonable efforts to comply with the preceding procedure as prescribed by the attending physician shall be civilly liable and subject to professional disciplinary action, including revocation or suspension of license. The health care provider shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated.

 

(b) A physician or other health care provider who, by no fault of such physician as health care provider, has not received notice of a declaration, revocation, or other change shall not suffer civil, administrative, or criminal penalties under this chapter.

 

As a result, if a physician or other healthcare provider cannot comply with a living will in good conscience then this statute provides a requirement that they make efforts to assist in the transfer of the patient to another physician who will comply with the living will declaration.  If the healthcare provider does not make reasonable efforts to comply with the provisions of the living will or to transfe...

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TAGS: Living Will Comments [0]
  
 

Probate and Estate Planning Conference 2013

Posted on Nov 8 2013 10:14AM by Attorney, Jason A. Lee

I am really enjoying the Tennessee Attorneys Memo 2013 Probate and Estate Planning Conference in Nashville today.  There are lots of important and significant changes to Tennessee law in multiple estate planning areas.  It reminds me of how important it is to review and update your estate plan to see if the changes to the law require changes to your plan.  Fundamental changes to the law can significanly impact the plan you set into place years ago.  For this reason, it is very important to update and review your plan on a consistent basis. 

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TAGS: Tennessee Probate Law Comments [0]
  
 

Can an Original Will be Compelled to be Produced in the Probate of an Estate under Tennessee law?

Posted on Nov 3 2013 4:50PM by Attorney, Jason A. Lee

An original will can be compelled to be produced in a Tennessee probate estate in certain circumstances.  If fraud is suggested to have been committed in the drafting or obtaining of a last will and testament or if there is any irregularity in the execution or attestation of the will, then a party may insist on the original will being produced.  T.C.A. § 32-2-109 provides as follows:

 

(a) When any fraud is suggested to have been committed in the drawing or obtaining any last will, or any irregularity in the executing or attestation of the will, the party making the suggestion may insist upon the original will being produced to the court, if the original is to be found.

(b) The court, wherever any suit is pending, and in which such a domestic will may be introduced as testimony, may compel all and every person or persons, whether in office or otherwise, to produce the will.

 

Additionally, T.C.A. § 32-4-106 provides that a copy of a will can be used in probate court.  T.C.A. § 32-4-106 provides as follows:

 

If the original will is lost or mislaid so that it cannot be produced on the trial of the issue, but the paper has been copied into the pleadings, or spread upon the minutes of the court, the court may proceed with the trial of the issue in the same manner as if the original were in existence and before it.

 

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TAGS: Probate Process, Wills, Tennessee Probate Law Comments [0]
  
 
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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