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What type of notice is required to be provided to beneficiaries under a testate (will) or intestate (no will) situation in Tennessee?

Posted on Mar 29 2013 3:44PM by Attorney, Jason A. Lee

Tennessee law requires that the personal representative for an estate must provide notice to beneficiaries under a will or to those entitled to receive distribution in an intestate situation (where there is no will) within sixty days after being appointed as the personal representative.  T.C.A. § 30-2-301(b)(1) provides as follows:

 

(b)(1) Except as provided in subdivision (b)(4), the personal representative, within sixty (60) days after entering on the administration, shall notify:

(A) Each legatee or devisee under the will that that person or entity is a beneficiary by sending, by first class mail or personal delivery, a complete copy of the will to those beneficiaries sharing in the residue of the estate, and by sending a copy of the paragraph or paragraphs of the will containing the bequests to those beneficiaries only receiving bequests; and

(B) Each residuary distributee of an intestate deceased person by sending that person a copy of the letters of administration.

 

After the notice has been provided to the beneficiaries the personal representative for the estate must provide, within the same sixty day notice period discussed above, notice to the clerk with an affidavit of compliance with the notice requirements under T.C.A. § 30-2-301.  Specifically, T.C.A. § 30-2-301(3) provides as follows:

 

Within the sixty-day period, the personal representative shall also execute and file with the clerk of the court an affidavit that the required copies have been mailed or delivered to the beneficiaries or distributees, and an explanation of efforts to identify and locate beneficiaries or distributees, if any, to whom copies have not yet been sent.

There is an exemption from the notice requirement when the personal representative is the sole beneficiary of the estate.  Compliance with the notice requirements is waived under T.C.A. § 30-2-301(4) in that situation.  Also, if the decedent's will was admitted to probate in solemn form then there is no requirement to notify under T.C.A. § 30-2-301.

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TAGS: Solemn Form Probate, Probate Process, Executor/Executrix, Notice Requirements, Tennessee Probate Law Comments [0]
  
 

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.

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TAGS: Wills, Witnesses to will, Execution Comments [0]
  
 

What is the Tennessee statute of limitations to set aside the probate of a will?

Posted on Mar 25 2013 11:05AM by Attorney, Jason A. Lee

Tennessee has a two year statute of limitations for proceeding to set aside the probate of a will.  This two year statute of limitations is calculated from the date of the entry of the order admitting the will to probate.  T.C.A. § 32-4-108 provides as follows:

 

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

 

However, there is an extension of time for individuals that are under the age of 18 years of age or are adjudicated incompetent at the time the cause of action accrues.  This extension of the statute of limitations is found in T.C.A. § 28-1-106 which provides as follows:

 

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

As a result, individuals who are under 18 years of age or who are adjudicated incompetent at the time the cause of action accrued, have two years from the date of the “restoration of legal rights” to file suit.  The “restoration of legal rights” occurs at the age of 18 for a minor and on the date the incompetent individual is no longer incompetent.

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TAGS: Wills, Statute of Limitations, Minor Children, Tennessee Probate Law Comments [0]
  
 

Under Tennessee law is a bond required of a personal representative (executor or administrator) of an estate?

Posted on Mar 22 2013 1:00PM by Attorney, Jason A. Lee

Generally, the court requires that personal representatives provide a bond before the court will give testamentary letters or letters or administration to administer the estate.  However, under certain circumstances the bond requirement will be waived.  T.C.A. § 30-1-201 provides specific circumstances where a bond is not required including the following:

 

(a)(1) The clerk shall not require a bond of the personal representative before issuing letters testamentary or letters of administration if:

(A) The decedent by will excuses the personal representative from making bond;

(B) The personal representative and the sole beneficiary of the estate are the same person and the court approves;

(C) All of the beneficiaries of the estate are adults and all of them consent in writing to the personal representative's serving without bond and the court approves; or

(D) The personal representative is a bank that is excused from the requirements of bond by § 45-2-1005.

 

Even if the bond requirement is waived using one of these exceptions, if the personal representative is "wasting, or likely to waste, the estate" the court can require a bond in an amount that it deems advisable under this statute.  T.C.A. § 30-1-201(b) provides as follows: 

 

(b) Any interested person may petition the court to suggest and show that the personal representative is wasting, or likely to waste, the estate. In this event, the court may require bond in an amount it deems advisable.

 

The next question is what bond amount is required if no exceptions found in T.C.A. § 30-1-201 apply.  The statute provides that

 

(2) If the preceding exemptions from making bond do not apply, the clerk, before issuing the letters, shall take from the personal representative a bond payable to the state, with two (2) or more sufficient sureties or one (1) corporate surety, in an amount determined by the court. If bond is required, the bond shall not be less than the value of the estate of the decedent subject to administration nor more than double the value of the estate and the court may increase or decrease the amount at any time by order.

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

Under Tennessee law, can a living will be revoked?

Posted on Mar 20 2013 4:39PM by Attorney, Jason A. Lee

A living will declaration can be revoked at any time regardless of the declarant's mental state or competency.  It can be revoked by certain methods found in T.C.A. § 32-11-106 which includes written revocation or an oral revocation made to the attending physician.  T.C.A. § 32-11-106 provides as follows:

 

A declaration may be revoked at any time by the declarant, without regard to the declarant's mental state or competency, by any of the following methods, effectively communicated by the declarant to the attending physician or other concerned health care provider:

(1) Written revocation by the declarant, dated and signed by the declarant.

(2) By oral statement or revocation made by the declarant to the attending physician. This revocation shall be made a part of the declarant's medical record by the attending physician.

As a result, even if an individual's mental state or competency is in question, if the revocation of the living will complies with one of the two provisions in this statute, then the living will is revoked.

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TAGS: Living Will Comments [0]
  
 

How is an insolvent estate handled under Tennessee probate law?

Posted on Mar 18 2013 9:05AM by Attorney, Jason A. Lee

Sometimes probate estates are insolvent which means the claims against the estate are greater than the assets in the estate.  In this situation T.C.A. § 30-5-102 requires the personal representative to file a notice of insolvency with the clerk.  A copy of that notice must be sent to all the creditors who have filed a claim.

 

Under T.C.A. § 30-5-103 the personal representative is then responsible to provide a proposed plan of distribution in accordance with T.C.A. §30-2-317.  T.C.A. §30-2-317 is the statute that governs the payment priority of all claims made against an estate.  T.C.A. § 30-5-103 provides as follows:

 

(a) The notice of insolvency shall contain an accounting of assets that have come into the hands of the personal representative and a proposed plan of distribution in accordance with § 30-2-317.

(b) The notice shall bear, in a conspicuous manner, the following language: “Objections to this proposed plan of distribution must be filed with the clerk within thirty (30) days from the date of receipt of this notice.”

(c) If no objections are filed within the thirty-day waiting period, the personal representative may execute the proposed plan of distribution and close the estate, relieving the personal representative of any further liability to the estate.

If there are any objections to the proposed plan of distribution than a hearing can be held pursuant to T.C.A. § 30-5-104 to determine if the proposed plan is appropriate.  After all of the objections to the plan of distribution are resolved, then distributions can be made and the estate can be closed under T.C.A. § 30-5-105.

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TAGS: Probate Process, Creditor claims, Notice Requirements, Tennessee Probate Law Comments [0]
  
 

What is the priority for claims or demands against an estate under Tennessee law?

Posted on Mar 15 2013 10:39AM by Attorney, Jason A. Lee

T.C.A. § 30-2-317 provides a list showing the priority for any claim or demand against the estate of a deceased individual in Tennessee.  Claims and demands against an estate are divided into certain categories and the statue provides the order in which the claims or demands are to be paid.  Specifically, T.C.A. § 30-2-317 provides a priority for claims and demands as follows:

 

(a) All claims or demands against the estate of any deceased person shall be divided into the following classifications, which shall have priority in the order shown:

(1) First: Costs of administration, including, but not limited to, premiums on the fiduciary bonds and reasonable compensation to the personal representative and the personal representative's counsel;

(2) Second: Reasonable funeral expenses;

(3) Third: Taxes and assessments imposed by the federal or any state government or subdivision of the federal or any state government, including claims by the Bureau of TennCare pursuant to § 71-5-116; and

(4) Fourth: All other demands that may be filed as aforementioned within four (4) months after the date of notice to creditors.

 

Category number four is a catch-all category for any claims that are filed with the probate court for the debts of the deceased individual within four months of the notice provided to the creditors.  This statute also provides specific instructions to the personal representative of how to pay the claims according to the specific priority found in the statute.  T.C.A. § 30-2-317(b) provides as follows:

 

(b) All demands against the estate shall be paid by the personal representative in the order in which they are classed, and no demand of one class shall be paid until the claims of all prior classes are satisfied or provided for; and if there are not sufficient assets to pay the whole of any one class, the claims in that class shall be paid pro rata.

It is very important for the personal representative to be aware of the rules pertaining to the priority of payment for any claim or demand against the estate.  This is where a probate attorney can be very helpful to guide and advise the personal representative in this process so Tennessee

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TAGS: Probate Process, Taxes, Debts of Estate, Creditor claims, Probate Assets, Notice Requirements Comments [0]
  
 

How is a last will and testament proved as valid in probate court in Tennessee?

Posted on Mar 13 2013 4:19PM by Attorney, Jason A. Lee

T.C.A. § 32-2-104 provides requirements for establishing proof of a proper will under Tennessee law.  Specifically, T.C.A. § 32-2-104(a) provides as follows:

 

(a) Written wills with witnesses, when not contested, shall be proved by at least one of the subscribing witnesses, if living. Every last will and testament, written or nuncupative, when contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it.

 

As a result, if the will is not contested by anyone then at least one of the witnesses, if living, must prove the will.  If the will is contested then all of the living witnesses that can be found must prove the will.  It is important to know that once prima facie evidence is submitted that a will is valid, the Tennessee Supreme Court has found that the burden to disprove the validity of the will then shifts to anyone who is contesting the will.  The Tennessee Supreme Court in Jackson v. Patton, 952 S.W.2d 404, 407 (Tenn. 1997) (citing Whitlow v. Weaver, 478 S.W.2d 57 (Tenn. Ct. App. 1970)) discussed this burden shifting when a will is contested as follows:

 

[T]he general rule is that the proponents of a will establish a prima facie case as to its due execution when the genuineness of the signatures of the testator and subscribing witnesses along with an attestation clause containing recitations of due execution is shown. Such a prima facie case in favor of the due execution of a will is not abandoned by presenting testimony of living witnesses which is otherwise.

...

Thus it is held that by virtue of the presumption the burden of going forward with the evidence shifts from the proponent of the will whose execution is at issue to the contestants.  The presumption is rebuttable, but it is established that, to overcome the presumption, the contestant must present “clear and satisfactory” proof of lack of due execution.

 

T.C.A. § 32-2-104(b) also provides a way to have the witnesses who signed the will (that live outside of Te...

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TAGS: Probate Process, Wills, Witnesses to will, Execution, Will Contest, Tennessee Probate Law Comments [0]
  
 

Can a beneficiary or heir of an estate force the distribution of estate assets?

Posted on Mar 11 2013 12:08PM by Attorney, Jason A. Lee

If an estate is open longer than eighteen (18) months, T.C.A. § 30-2-710 provides that a beneficiary or heir (also called legatee or distributee) can file a petition to compel payment of the appropriate distribution.  T.C.A. § 30-2-710 provides as follows:

 

(a) Any distributee or legatee of the estate may, after the expiration of eighteen (18) months from the grant of letters, apply to the probate or chancery court of the county in which administration was taken out, to compel the payment of the distributee's or legatee's distributive share or legacy.

(b) The application shall be by petition or bill, shall set forth the claim of the applicant as legatee or distributee, shall allege that the assets of the estate are more than sufficient to pay the debts, charges, and other claims, if any, entitled to priority, and be verified, by affidavit.

(c) The proceedings under the application shall be conducted as other equitable actions, and heard and determined summarily as soon as practicable.

 

This petition must set forth specific allegations that the assets are sufficient to pay all debts and claims against the estate.  This petition must be supported by an affidavit. 

The court then must determine if it is appropriate to distribute certain assets of the estate to the beneficiary or heir.  This statute can be used to try to force a distribution in an estate that has been delayed over eighteen months.  If an estate is open in Tennessee for a long time with no distribution, a Tennessee probate attorney can assist to bring the matter to conclusion by using this or other statutes that provide tools to move a probate estate forward to conclusion.

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TAGS: Probate Process Comments [0]
  
 

Who can file a petition for the appointment of a conservator in Tennessee?

Posted on Mar 8 2013 3:08PM by Attorney, Jason A. Lee

T.C.A. § 34-3-102 is the statute that identifies who can file a petition for a conservatorship in Tennessee.  T.C.A. § 34-3-102 provides as follows:

 

A petition for the appointment of a conservator may be filed by any person having knowledge of the circumstances necessitating the appointment of a conservator.

 

As a result, the statute provides only limited restrictions on who can file a petition for the appointment of a conservator in Tennessee.  The only real limitation is that the individual must have knowledge of the circumstances necessitating the appointment of a conservator.

This does not mean that the person who files a petition to be appointed as conservator will actually be appointed.  T.C.A. § 34-3-103 provides a list of priority for those the court should consider to be appointed as conservator in Tennessee for a “disabled person”.

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TAGS: Tennessee Conservatorship 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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