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Are Investment Options Limited for a Conservator or Guardian who Invest Funds for the Benefit of the Minor or Disabled Person Under Tennessee Law?

Posted on Mar 30 2014 9:58PM by Attorney, Jason A. Lee

A fiduciary (normally a conservator or guardian) is limited in what investments can be made with the money that is the property of a minor or disabled person.  Tennessee law requires that all funds held by a fiduciary must be invested within 45 days of receipt of the funds unless otherwise ordered by the court. (See T.C.A. § 34-1-115). 

 

The type of investments that can be made by the fiduciary are outlined in T.C.A. § 35-3-101 et al.  This set of statutes is too long to repeat here but includes a detailed list of available investments that includes a significant amount of options for the preservation and potential growth of the assets of the minor or disabled person.  These statutes should be reviewed whenever a conservator or guardian is trying to make a decision on what types of investments can be made with the money. 

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Tennessee Conservatorship Comments [0]
  
 

New Tennessee Wills and Estates Facebook Page

Posted on Mar 25 2014 4:25PM by Attorney, Jason A. Lee

I now have a Facebook page for Tennessee Wills and Estates.  I plan to post my blog content to Facebook on a weekly basis.  This is an easy way to follow my blog posts and stay up to date on issues that impact Tennessee estate planning.  You can “Like” the page HERE.

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TAGS: Wills, Tennessee Probate Law Comments [0]
  
 

Is a 401k Distributed Pursuant to your Will and is it Part of a Probate Estate in Tennessee?

Posted on Mar 21 2014 12:45PM by Attorney, Jason A. Lee

One thing a significant amount of people do not realize is that a 401K is not necessarily part of someone’s estate in Tennessee.  As a result, almost always 401k assets are not distributed pursuant to the intentions expressed in your will.  Some people believe a 401k passes pursuant to whatever terms are in their will but this is simply not true.  As a general rule, when someone dies, their 401k proceeds are not distributed under the will.  They are instead distributed based on the beneficiary designations in the 401k.  This is important to remember when constructing an appropriate estate plan.  It also should cause you to check your beneficiary designations periodically to make sure they match your intentions. 

 

However, there are some circumstances where the 401k could be paid to the estate (and therefore pursuant to the will).  For instance, if somebody does not list any beneficiary on the 401k, then the proceeds would be paid into the estate (unless the 401k plan documents dictate otherwise).  Additionally, people can list their estate as the beneficiary for the 401k.  There are only a very limited number of circumstances where this would be appropriate.  Due to the tax and other consequences of such a designation, it is almost always better to list an individual as the beneficiary of a 401k. 

 

Due to the fact the 401k money is generally distributed pursuant to the beneficiary designation, the 401k assets are not part of a probate estate (however, they are still counted for purposes of the Tennessee Inheritance Tax and Federal Estate Tax).  This is usually a positive so you can avoid the claims of creditors in a probate estate and so the money can be distributed to the beneficiaries faster.

 

As a result, when planning how your assets will be distributed to your heirs or children, it is important to keep this information in mind.  If you desire to have your assets split equally among all of your children, for instance, then make sure your beneficiary designations on your 401k and life insurance policies reflect this intention.  Sometimes people have their will done correctly where it shows that all their assets should be split equally among their children, but they do not pr...

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TAGS: Life Insurance, Retirement plans - 401k etc., Wills, Creditor claims, Probate Assets Comments [0]
  
 

How Much Does it Cost to Have a Will Drafted in Tennessee?

Posted on Mar 7 2014 4:17PM by Attorney, Jason A. Lee

One of the most frequent questions I am asked is “How much does it cost to have an attorney draft a will in Tennessee?”  People often believe that obtaining necessary and important documents such as a Will, Power of Attorney, Healthcare Power of Attorney and Living Will is a very expensive and complicated process.  This is absolutely not true!  Many people are surprised when I tell them the actual cost of having these documents prepared.  With this in mind, I have decided to share my pricing for these documents so that people can be properly informed on the actual costs to have an estate planning package drafted by an attorney.  The cost is very insignificant when compared to the importance of having your final affairs in order. 

 

For the vast majority of individuals, my cost to prepare an estate package including a Will, Power of Attorney, Healthcare Power of Attorney and Living is a flat rate of $450.00.  I charge this same flat rate for both single individuals and married couples.  This is the total charge, which means for a married couple, a total of eight documents would be prepared for $450.00. 

 

As I have previously indicated in my blog, all of these documents are essential for everyone to have.  This price assumes everything, with the exception of signing the documents, can be done by email and telephone for the exchange of information and discussion about estate planning decisions to be made based on the individual circumstances.  This is generally a very easy process.  I have detailed questionnaires that you, and if applicable, your spouse can complete on your own time to make all of the necessary decisions.  You can email, fax or mail the questionnaires back to me once complete.  From there, I draft the estate planning documents.  I then send them to you for approval and will address any questions you may have.  Once the documents are in final form, a meeting is scheduled at my office in Nashville, Tennessee, to sign (aka “execute”) the documents.  The execution of all the documents with a notary and witnesses takes approximately 45 minutes.

 

Some people prefer to meet with me in person to discuss strategy and decisions before the docu...

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TAGS: Wills, Durable Power of Attorney for Healthcare, Power of Attorney, Living Will Comments [0]
  
 

Probate Law - When does Real Property become the Property of the Beneficiaries in Tennessee?

Posted on Mar 3 2014 11:44PM by Attorney, Jason A. Lee

Under Tennessee law, real property of an intestate decedent (an individual who dies without a will) vests immediately in the heirs upon death.  Additionally, the real property of a testate decedent (an individual who dies with a will) vests immediately in the beneficiaries named in the will unless the will gives directions to administer the real property through the estate.  T.C.A. § 31-2-103 provides in totality as follows:

 

The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent's personal property is insufficient for the discharge or payment of a decedent's obligations, the personal representative may utilize the decedent's real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent's heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in decedent's will.

 

This statute does not mean that real property cannot be used to pay any debts or obligations of the decedent.  This statute specifically provides that if the decedent's personal property is insufficient to discharge all of the decedent's obligations then the real property can be sold to satisfy those obligations.  It is important to have an experienced Tennessee probate attorney to assist you when dealing with real estate property in the context of an estate.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Intestate, Real Estate, Creditor claims, Probate Assets, 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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