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What is Exempt Property in a Tennessee Estate for a Surviving Spouse or Minor Children?

Posted on Apr 27 2014 10:44PM by Attorney, Jason A. Lee

Analysis:  T.C.A. § 30-2-101 provides that a surviving spouse of a person who died without a will (intestate decedent) or a surviving spouse who elects against their spouse’s will (this is called an elective share under T.C.A. § 31-4-101) is entitled to receive certain exempt property from the estate.  Specifically, the surviving spouse can receive exempt property having a fair market value that does not exceed $50,000.00 as stated in T.C.A. § 30-2-101 as follows:

 

(a) The surviving spouse of an intestate decedent, or a spouse who elects against a decedent's will, is entitled to receive from the decedent's estate the following exempt property having a fair-market value (in excess of any indebtedness and other amounts secured by any security interests in the property) that does not exceed fifty thousand dollars ($50,000):

(1) Tangible personal property normally located in, or used in or about, the principal residence of the decedent and not used primarily in a trade or business or for investment purposes, and

(2) A motor vehicle or vehicles not used primarily in a trade or business. If there is no surviving spouse, the decedent's unmarried minor children are entitled as tenants in common only to exempt property as described in subdivision (a)(1). Rights to this exempt property are in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead or year's support allowance.

 

This exempt property is in addition to other benefits (including the elective share, homestead or year’s support allowance) the surviving spouse or minor child would receive as specifically stated in subsection (a)(2).  If there is no surviving spouse then unmarried minor children are entitled to own the exempt property as tenants in common with each other.  Keep in mind that exempt property doe...

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TAGS: Intestate, Exempt Property, Elective Share, Minor Children Comments [0]
  
 

In Tennessee can a Will Submitted to Probate in Solemn Form be Challenged by a Later Filed Will Contest?

Posted on Apr 20 2014 10:12PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals decision of In re: Estate of John Leonard Burke, No. M2012-01735-COA-R3-CV, 2013 WL 2258045 (Tenn. Ct. App. 2013) dealt with a situation where a will was submitted to probate in solemn form on December 19, 2011.  The trial court noted at that time that all potential beneficiaries had been served with notice of the hearing and that no objection was filed to the probate of the will.  On June 8, 2012, the deceased’s stepson filed a challenge to the will alleging that the will was “procured by the fraudulent inducement” of the deceased’s wife.  As a result, the question was whether this challenge, instituted approximately six months after the will was probated in solemn form, could be brought at that point. 

 

The Tennessee Court of Appeals ultimately held that when a will is submitted in solemn form under T.C.A. § 30-1-117(b) “a will contest must be initiated, if at all, prior to the entry of the final order admitting the will to probate in solemn form, not prior to the final order closing the estate.” Burke at 5.  Due to the fact the stepson in this case did not challenge the will until after the entry of the order entering the will in solemn form, the will contest was dismissed as untimely. 

 

Submitting a will in “solemn form” can be beneficial in certain circumstances although it is not necessarily justified in every case.  It can be beneficial if there is concern that one of the beneficiaries may want to contest the will at some point.  This can be a good strategy to force them to act rather quickly on the front end or forever lose the opportunity to contest the will. 

 

On the other side of things, if a party...

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TAGS: Solemn Form Probate, Probate Process, Wills, Will Contest, Tennessee Probate Law Comments [0]
  
 

In Tennessee How Does a Court Determine if the Intentions Stated in a Will are Clear Enough to Enforce?

Posted on Apr 13 2014 9:13PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision, Donna Perdue v. Estate of Daniel Jackson, No. W2012-02710-COA-R3-CV, 2013 WL 2644670 (Tenn. Ct. App. 2013) discussed how clear a will must be in order to be enforceable.  The will in this case was a holographic will (which simply means that the will was in the handwriting of the deceased person).  One party asserted the will was not clear enough to enforce in Tennessee probate court.  This case was ultimately appealed to the Tennessee Court of Appeals and the Court provided a helpful discussion about how Tennessee courts should determine if a will is clear enough to enforce. 

 

The Tennessee Court of Appeals discussed that the “purpose of a suit to construe a will is to ascertain and give effect to the testator's intention.” Perdue at 3.  The court noted that “it is the absolute right of the testator to direct the disposition of his property and the Court's [sic] are limited to the ascertainment and enforcement of his directions.”  Perdue at 3.  (citing Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990).

 

In discussing how to determine the intent of the testator, the Court provided an excellent description of the specific considerations of the Court when determining how to evaluate the language in the will.  The Court stated:

 

The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy.  In seeking out the testator's intent, we have several rules of construction to aid us in that effort.  However, all rules of construction are merely aids in ascertaining the intent of the testator.

 

In gleaning the testator's intent, we look to the entire will, including any codicil.  The testator's intent is to be determined from the particular words used in the will itself, and not from what it is supposed the testator intended.  Where the will to be construed was drafted by the testator himself who was not versed in the law and without legal assistance the court in arriving at the intention of the testator should construe the language of the will with liberality to effectuate what appears to be the testamentary purpose.  We are also guided by an additional principle of construction; when a decedent undertakes to make a will, we must presume that the decedent intended to di...

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TAGS: Holographic Will, Wills Comments [0]
  
 

Error of Signing Affidavit Attached to Will, Instead of Will, Invalidates Will in Tennessee Supreme Court Decision

Posted on Apr 6 2014 9:40PM by Attorney, Jason A. Lee

The Tennessee Supreme Court recently decided an interesting case on the proper execution of a will in Tennessee [In re: Estate of Thomas Grady Chastain, 401 S.W.3d 612 (Tenn. 2012)].  This case dealt with a situation where the decedent failed to put his signature on his two page will.  He did, however, sign a one page affidavit of attesting witnesses that was purported to be attached to the will.  Chastain, at 615, 616.  The questions before the Tennessee Supreme Court was whether this was sufficient to qualify as the decedent’s signature and whether this should be accepted by the Court as the last will and testament of the decedent. 

 

The statutory requirements under Tennessee law for the signing of a will are found in T.C.A. § 32-1-104 and provide as follows:

 

The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows:

(1) The testator shall signify to the attesting witnesses that the instrument is the testator's will and either:

(A) The testator sign;

(B) Acknowledge the testator's signature already made; or

(C) At the testator's direction and in the testator's presence have someone else sign the testator's name; and

(D) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses.

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TAGS: Wills, Witnesses to will, Execution 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
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