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What is a holographic will under Tennessee law?

Posted on Feb 28 2013 11:16AM by Attorney, Jason A. Lee

A holographic will is one that is done in the handwriting of the testator.  There are three different types of wills under Tennessee law.

 

(1) Normal will with execution completed pursuant to T.C.A. § 32-1-104.

(2) Holographic will pursuant to T.C.A. § 32-1-105 (in handwriting of the testator)

(3) Nuncupative will pursuant to T.C.A. § 32-1-106 (will completed while in imminent peril of death)

 

Under Tennessee law a holographic will must comply with the specific requirements found in T.C.A. § 32-1-105 which provides as follows:

 

No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator's handwriting must be proved by two (2) witnesses.

 

As a result, for a holographic will to be valid it must have the signature of the testator.  Additionally, all of the material provisions in the will must be in the actual handwriting of the testator.  Further, the testator's handwriting in the holographic will must be proved to be the testator’s by two witnesses.  If these requirements are met than a holographic will will be valid under Tennessee law. 

 

It is still better to have a Tennessee attorney who is experienced in drafting wills handle the formation of the will documents. Continue Reading  

TAGS: Holographic Will, Nuncupative Will, Wills Comments [0]
  
 

Under Tennessee law can a fraudulent conveyance that is made to defeat the elective share option of the "surviving spouse" be voided?

Posted on Feb 26 2013 10:03AM by Attorney, Jason A. Lee

Under Tennessee law any conveyance by the decedent that is made in a fraudulent manner to children or any other individual in order to defeat the "surviving spouse’s distributive or elective share" is voidable at the option of the surviving spouse.  This situation can arise where an individual knows he or she is going to die soon, and therefore conveys property or other assets to another individual in order to try to remove it from the estate so it would not go to the surviving spouse.  Since the spouse has a right to certain benefits under Tennessee Law including an elective share, such a distribution that is done for a fraudulent purpose can be voided.

 

T.C.A. § 31-1-105 is the Tennessee statute that basically prevents an individual from successfully transferring assets prior to death in order to reduce the value of the estate that is subject to the elective share option under Tennessee law.  T.C.A. § 31-1-105 provides as follows:

 

Any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of the surviving spouse's distributive or elective share, is, at the election of the surviving spouse, includable in the decedent's net estate under § 31-4-101(b), and voidable to the extent the other assets in the decedent's net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse under § 31-4-101(c).

 

As a result, if gifts or conveyances are made to children or any other individual, those gifts or conveyances can be voided by the court if requested by the surviving spouse.  This will be done to protect the surviving spouse's entitlement to an elective share.  The elective share of a surviving spouse will be discussed in a subsequent post however, the main part of the statute, T.C.A. § 31-4-101(a) provides as follows:

 

(a)(1) The surviving spouse of an intestate decedent who elects against taking an intestate share, or a surviving spouse who elects against a decedent's will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent's net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule:

 

If the decedent and the surviving spouse were married:

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TAGS: Fraudulent Conveyance, Elective Share, Surviving Spouse Comments [0]
  
 

If an individual dies without a will (intestate) in Tennessee and they leave a surviving spouse and children, what happens to the decedent’s property?

Posted on Feb 25 2013 10:28AM by Attorney, Jason A. Lee

When an individual dies without a will (intestate) Tennessee statutes govern the distribution of their estate including all of their assets and property.  T.C.A. § 31-2-104 provides that if there is a surviving spouse then the distribution is as follows:

 

(a) The intestate share of the surviving spouse is:

(1) If there is no surviving issue of the decedent, the entire intestate estate; or

(2) If there are surviving issue of the decedent, either one-third (1/3) or a child's share of the entire intestate estate, whichever is greater.

 

Surviving Spouse only (with no surviving “issue”):

 

As a result, if there is a surviving spouse with no “issue” from the decedent then the surviving spouse takes the entire estate.  The next question is, what does it mean to have surviving “issue” of the decedent?  Issue is defined in T.C.A. § 31-1-101 as follows:

 

(6) “Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;

 

This includes children but it also includes grandchildren (and also others but children and grandchildren are the most common examples of “issue”). 

 

Surviving Spouse with surviving “issue”:

 

If the decedent had surviving “issue” then the surviving spouse gets a one-third share of the estate or a child's share of the estate, whichever is greater.  This means that if there is a surviving spouse and one chi...

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TAGS: Intestate, Intestate Succession, Elective Share, Homestead, Surviving Spouse, Year's Support Comments [0]
  
 

What is the "year's support” allowance under Tennessee law for a surviving spouse or minor child?

Posted on Feb 22 2013 9:38AM by Attorney, Jason A. Lee

The surviving spouse of an intestate individual who dies (this is an individual who dies without a will) is entitled to a “support allowance” totaling one year of support after the death of the spouse.  This option is also available to a surviving spouse who elects against the deceased's will (also called an elective share).  T.C.A. § 30-2-102(a) provides as follows:

 

(a) In addition to the right to homestead, an elective share under title 31, chapter 4, and exempt property, the surviving spouse of an intestate, or a surviving spouse who elects to take against a decedent's will, is entitled to a reasonable allowance in money out of the estate for such surviving spouse's maintenance during the period of one (1) year after the death of the spouse, according to the surviving spouse's previous standard of living, taking into account the condition of the estate of the deceased spouse. The court may consider the totality of the circumstances in fixing the allowance authorized by this section, including assets that may have passed to the spouse outside probate.

 

As a result, the court considers all of the circumstances surrounding the estate as well as any money the spouse received outside of the probate estate to determine the amount of the “year’s support” in Tennessee.  The court also takes into consideration the spouse’s standard of living to determine the appropriate amount of the support allowance.

 

It is important to note that this statute also provides that if the individual who died does not have a surviving spouse but instead is survived by minor unmarried children, then the support allowance (“year’s support”) can be provided to the unmarried minor children in Tennessee.  This is provided for in T.C.A. § 30-2-102(b) which states as follows:

 

(b) The allowance so ordered shall be made payable to the surviving spouse, unless the court finds that it would be just and equitable to make a division of it between the unmarried minor children. If there is no surviving spouse, the allowance shall be made to the unmarried minor children.

 

Under T.C.A. § 30-2-104 the death of the surviving spouse within the one year period after the surviving spouse elects to receive the “year's support” allowance under T.C.A. § 30-2-102 does not affect the surviving spouse's entitlement to this money.  T.C.A. § 30-2-104 provides: 

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TAGS: Elective Share, Surviving Spouse, Year's Support, Minor Children Comments [0]
  
 

Is someone who is divorced, separated or had their marriage annulled from a decedent considered a "surviving spouse" under Tennessee law?

Posted on Feb 21 2013 3:05PM by Attorney, Jason A. Lee

It is important to determine who qualifies as a surviving spouse under Tennessee law for purposes of certain statutes that provide surviving spouses with substantial benefits and options (including elective share, homestead, year's support etc.).  T.C.A. § 31-1-102 provides that a person who is divorced from a deceased individual is not considered a "surviving spouse" under Tennessee law (assuming they have not remarried post divorce and are married at the time of death).  The same is true for an annulled marriage.  An individual whose marriage was annulled from a decedent is not considered a "surviving spouse" under Tennessee law. 

 

A decree of separation that does not actually terminate the status of husband and wife is a different matter.  The decree of separation is not considered a divorce or final and therefore that individual is still a "surviving spouse" under Tennessee law. 

 

T.C.A. § 31-1-102 provides in its entirety as follows:

 

(a) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b) For purposes of this title, a surviving spouse does not include:

(1) A person who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife;

(2) A person who, following a valid or invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or

(3) A person who was a party to a valid marital dissolution agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.

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TAGS: Elective Share, Homestead, Surviving Spouse, Year's Support Comments [0]
  
 

What is the Tennessee inheritance tax exemption for 2013?

Posted on Feb 20 2013 11:38AM by Attorney, Jason A. Lee

The Tennessee inheritance tax exemption amount was amended by legislation passed by the Tennessee legislature in 2012.  Public Chapter 1057 changed the exemption for the Tennessee estate tax for deaths that occur in 2012 and after.  It also abolished the Tennessee inheritance tax for anyone who dies after January 1, 2016.  As a result of this legislation the Tennessee inheritance tax exemption (based on the year of death) is as follows:

 

2012 - $1,000,000.00

2013 - $1,250,000.00

2014 - $2,000,000.00

2015 - $5,000,000.00

2016 and after – The Tennessee inheritance tax is abolished.

 

The actual rate of the Tennessee inheritance tax is the following (this is the actual tax rate after the exemption and any other applicable deductions):

 

First $40,000.00 - 5.5%

Next $40,000.00 to $240,000.00 - 6.5%

Next $240,000.00 to $440,000.00 - 7.5%

$440,000.00 and over - 9.5%

Additional helpful information on the Tennessee inheritance tax can be found at the Tennessee Department of Revenue’s website page for the inheritance tax.  Also, the Tennessee Department of Revenue released an official notice on the changes found in the 2012 legislation on the Tennessee inheritance tax and that memo can be found here.

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TAGS: Tennessee Inheritance Tax, Taxes Comments [0]
  
 

What types of assets are not probate assets in Tennessee?

Posted on Feb 19 2013 10:32AM by Attorney, Jason A. Lee

It is important to determine what assets are probate assets and what assets are not probate assets to determine whether an estate needs to be probated under Tennessee Law.  It is important to plan ahead in order to keep as many assets out of the probate process if possible.  Assets that do not pass through the probate process include the following:

 

1.         Any 401k plan, IRA plan or any other type of retirement plan that designates a specific beneficiary (other than where the beneficiary is designated as the decedent's estate).

 

2.         Any asset including bank accounts, real estate, automobiles or other assets that are titled in the name of the deceased individual and another individual as joint tenants or tenants by the entirety with right of survivorship.  These assets pass immediately upon death to the other individual.

 

3.         Any asset of any kind that are titled in the decedent's name with a "transfer on death" or "pay on death" designation for a specific beneficiary other than the decedent's estate.

 

4.         Any life insurance policy which has a specific beneficiary designated other than the estate of the deceased individual.

It is important to determine what assets are probate assets and what assets are not probate assets in order to determine whether a will needs to be probated under Tennessee law.  A Tennessee probate attorney should be consulted to determine how to make this decision after an individual dies.  Additionally certain decisions can be made before death in order to reduce or eliminate what assets pass through the probate process.

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TAGS: Life Insurance, Retirement plans - 401k etc., Real Estate, Probate Assets, Tennessee Probate Law Comments [0]
  
 

In Tennessee when are you required to go through a court supervised probate process to handle an estate?

Posted on Feb 18 2013 1:56PM by Attorney, Jason A. Lee

One of the most important questions when considering how to handle a deceased person's estate is whether a formal court monitored probate process is required.  T.C.A. § 30-1-101 provides that "no person shall presume to enter upon the administration of any deceased person's estate until the person has obtained letters of administration or letters testamentary."  Essentially, this statute prohibits the administration of an estate outside of the formal court probate process for someone who died who had assets that are commonly referred to as "probate assets". 

 

The next question therefore is what "probate assets" would likely require the formal probate administration process that is required under Tennessee law.  Examples of key "probate assets" are as follows:

 

1.         Any 401k, IRA, or any other kind of retirement plan that designates the estate of the decedent as a beneficiary.

 

2.         Any life insurance policy of the decedent that lists the estate as a beneficiary.

 

3.         Any asset that is titled in the decedent's name without any designation of a beneficiary or without joint ownership with another individual.

 

4.         Any asset that is titled in the decedent's name that has anther individual listed on the title as "tenants in common".

It is very important when someone dies to carefully evaluate whether the court administrated probate process is required under Tennessee law in order to properly distribute the assets of the deceased.  This is where the advice of a probate attorney is very valuable to handle your specific situation.  Contact me if you want to discuss this or any other issue involving the probate of an estate.

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TAGS: Probate Process, Life Insurance, Retirement plans - 401k etc., Real Estate, Probate Assets, Tennessee Probate Law Comments [0]
  
 

In Tennessee what county/jurisdiction handles the probate of a decedent's estate when they die with a will (testate)?

Posted on Feb 16 2013 9:35PM by Attorney, Jason A. Lee

Tennessee law provides that when an individual dies with a will (testate) then the appropriate county to file for probate of the will is where the deceased individual had their usual residence at the time of their death.  Specifically, T.C.A. § 32-2-101 provides as follows:

 

Wills shall be proved and recorded and letters testamentary granted in the probate court of the county where the testator had the testator's usual residence at the time of the testator's death, or, in case the testator had fixed places of residence in more than one county, in either or any of those counties.

 

As a result, when an individual dies with a will and the estate needs to be probated, the appropriate jurisdiction is their residence at the time of death.  If the deceased had multiple residences in multiple counties at the time of their death, then any of the counties where they had a fixed place of residence can be the appropriate jurisdiction.

 

Please note that counties across Tennessee handle probate cases differently.  Some counties (like Davidson County) have a full circuit court judge designated to handle all probate matters.  Other counties have specially designated probate judges that are not circuit court judges.

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TAGS: Jurisdiction, Probate Process Comments [0]
  
 

Under Tennessee law, when a person dies without a will (intestate) who can file with the court for administration of the estate?

Posted on Feb 15 2013 3:27PM by Attorney, Jason A. Lee

When an individual dies without a will in Tennessee, the spouse of that deceased individual is the person who has the highest priority to be the administrator of the estate.  T.C.A. § 30-1-106 provides as follows:

 

When any person dies intestate in this state, administration shall be granted to the spouse of that person, if the spouse makes application for administration. For want of application for administration upon the part of the spouse, the administration shall be granted to the next of kin, if such next of kin apply for it. If neither the spouse nor next of kin make application for administration, then administration shall be granted to a creditor proving the decedent's debt on oath before the probate court; provided, that when there is more than one next of kin, the probate court may decide which of the kin shall be entitled to the administration.

 

As a result, if the surviving spouse files a petition to be appointed as the administrator of the estate then they have the highest priority.  If there is no spouse that files an application for administration then T.C.A. § 30-1-106 provides that the "next of kin" should have the next highest level of priority to be the administrator of the estate.  If there is more than one next of kin the probate court can make a decision as to which next of kin should be appointed as the administrator of the estate. 

If both the spouse and any of the next of kin fail to apply to be the administrator of the estate then the administration “shall be granted” to a creditor who proves the decedent's debt on oath before the probate court.

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TAGS: Intestate, Probate Process Comments [0]
  
 
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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
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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