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What is the requirement for taking inventory of the decedent’s possessions and property in a Tennessee probate estate?

Posted on May 28 2013 9:00PM by Attorney, Jason A. Lee

Tennessee law requires the personal representative (Executor, Executrix or Administrator of the estate) to make a complete and accurate inventory of the probate estate of a deceased within sixty days after being appointed the personal representative for the estate.  T.C.A. § 30-2-301(a) provides as follows:

 

(a) The personal representative, within sixty (60) days after entering on the administration of a testate or intestate estate, shall make a complete and accurate inventory of the probate estate of the deceased, and return the inventory to the clerk of the court exercising probate jurisdiction in the county of the estate, and verify it by the personal representative's oath before the clerk or before any person authorized by law to administer oaths in such cases whether within or without the borders of the state of Tennessee. When the will of the deceased excuses the requirement for making and filing an inventory of the estate, or when excused by all of the residuary distributees or legatees, no inventory shall be required of a solvent estate, unless demanded by any residuary distributee or legatee of the estate.

 

This inventory must be filed with the clerk of the court under oath.  However, under T.C.A. § 30-2-301, no inventory is required when the will of the deceased specifically excuses the requirement for the filing of an inventory for an estate (this is generally included in most wills that have been drafted over the last several years).  In the alternative, when all of the residuary distributees or legatees (commonly referred to as heirs) of an estate agree to a waiver of the inventory requirements, then the inventory requirement can be waived by the Court.  Otherwise, the inventory is an important component of the probate of an estate under Tennessee law and must be filed with the court within 60 days.

 

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TAGS: Executor/Executrix, Probate Assets, Notice Requirements, Tennessee Probate Law Comments [0]
  
 

How are heirs that are born after decedent's death treated under Tennessee law (when they are conceived before death or after death)?

Posted on May 23 2013 8:47AM by Attorney, Jason A. Lee

Determining what happens to heirs that are conceived before death and born after death is relatively easy because the Tennessee legislature has provided a specific statute on this issue.  The question of what happens under Tennessee law to posthumously born children where the conception is accomplished post-death by in vitro fertilization or artificial insemination is much more difficult because the Tennessee legislature has not provided us with guidance to date.

 

A.         Conception before death – born after death

 

T.C.A. § 31-2-108 provides that "after born heirs" (those that are conceived before the decedent's death but born after the decedent's death) inherit just like they would if they would have been born during the lifetime of the decedent.  T.C.A. § 31-2-108 provides as follows:

 

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

 

As a result, as long as the relative (this could be a child or a collateral relative that somehow inherits from the decedent) is conceived before the decedent's death, then they are considered to have been born during the life of the decedent. 

 

Obviously, this can cause interesting questions about the date of conception of the baby for purposes of determining whether they can inherit from the deceased individual.  If the relative was conceived after the decedent's death then they are not entitled to be considered to have been born during the lifetime of the decedent.  This could, in some circumstances, cause them to not inherit from the deceased.  The statute does not define or address how to resolve this issue if the date of conception is close enough to death that the parties and court cannot determine which came first, the death or the conception.

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TAGS: Intestate Succession, Minor Children, Tennessee Probate Law Comments [0]
  
 

When must TennCare be notified of an individual's death under Tennessee law in the context of a probate estate?

Posted on May 21 2013 9:54AM by Attorney, Jason A. Lee

Under certain circumstances, TennCare must be provided with notice by the personal representative of the death of an individual in the context of a probate estate in Tennessee.  T.C.A. § 30-2-301 provides that within sixty days of a personal representative's appointment as the personal representative, they are required to execute and file an affidavit with the clerk that the Bureau of TennCare has been notified of the decedent's death if they are older then 55 years of age or are a TennCare recipient.  T.C.A. § 30-2-301(b)(5) provides as follows:

 

(5) Within the sixty-day period, the personal representative shall execute and file with the clerk of the court an affidavit that the bureau of TennCare has been notified of the decedent's death pursuant to § 71-5-116.

 

T.C.A. § 71-5-116(c)(2) provides as follows:

 

(c)(2) Before any probate estate may be closed pursuant to title 30, with respect to a decedent who, at the time of death, was enrolled in the TennCare program, the personal representative of the estate shall file with the clerk of the court exercising probate jurisdiction a release from the bureau of TennCare evidencing either:

(A) Payment of all medical assistance benefits, premiums, or other costs due from the estate under law;

(B) Waiver of the bureau's claims; or

(C) A statement from the bureau that no amount is due.

 

Therefore, it is clear that when someone is enrolled in TennCare at the time of their death, a release must be filed with the court in the probate estate stating that TennCare has been paid all it is owed from the estate; or that TennCare has waived any claim; or that TennCare has stated that no money is owed. 

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TAGS: Creditor claims, TennCare, Notice Requirements Comments [0]
  
 

Can a durable power of attorney for healthcare be revoked under Tennessee law?

Posted on May 13 2013 10:01PM by Attorney, Jason A. Lee

A durable power of attorney for healthcare is an important document that allows you to decide who can make certain medical decisions for you should you become incapacitated and unable to make such decisions.  Tennessee law provides that a durable power of attorney for healthcare can be revoked under T.C.A. § 34-6-207.  This statute provides as follows:

 

(a) The principal may, after executing a durable power of attorney for health care, do any of the following:

(1) Revoke the appointment of the attorney in fact under the durable power of attorney for health care by notifying the attorney in fact orally or in writing; or

(2) Revoke the authority granted to the attorney in fact to make health care decisions by notifying the health care provider orally or in writing.

(b) If the principal notifies the health care provider orally or in writing that the authority granted to the attorney in fact to make health care decisions is revoked, the health care provider shall make the notification a part of the principal's medical records and shall make a reasonable effort to notify the attorney in fact of the revocation.

 

As a result there is a clear Tennessee statute that allows the revocation of a durable power of attorney for healthcare in a relatively easy fashion.  It can be done orally or in writing.  It is almost always better that the revocation be in writing so there is clear evidence of the revocation and there is no question about the decision.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Durable Power of Attorney for Healthcare Comments [0]
  
 

Is an adopted child considered the child of a deceased person when that individual dies without a will (intestate) under Tennessee law?

Posted on May 10 2013 6:31AM by Attorney, Jason A. Lee

T.C.A. § 31-2-105 discusses an adopted child’s legal status under Tennessee law when their adopted parent dies without a will (intestate).  Specifically, subsection (a) provides as follows:

 

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent;

 

As a result, under Tennessee law an adopted child is considered to be the child of an adopting parent, not the natural parent.  One exception is when the child is adopted by a spouse of a natural parent, then the child is still considered to be the child of that specific natural parent (not the other natural parent).

 

Additionally, under T.C.A. § 31-1-101(6) an adopted child is considered to be "issue" from the deceased just like a natural born child.  This is the statute that defines the term “issue” which is used throughout the intestate succession statutes and it states 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;

 

The definition of “child” under the statute also identifies an adopted child as having an equal st...

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TAGS: Intestate Succession, Adopted Children Comments [0]
  
 

Tennessee law requires an individual to survive a decedent by 120 hours in order to inherit from them under a will or intestate succession.

Posted on May 6 2013 10:54AM by Attorney, Jason A. Lee

Tennessee law provides in T.C.A. § 31-3-120 that an individual must survive a decedent by 120 hours in order to recover from their estate.  Specifically, recovery is not allowed if there is a failure to survive by 120 hours under the theories of homestead allowance, years support allowance, exempt property, elective share and intestate succession.  As a result, when two individuals experience simultaneous death or die within a 120 hour period, the individual who failed to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of intestate succession.  T.C.A. § 31-3-120(a) provides as follows:

 

(a) An individual who fails to survive the decedent by one hundred twenty (120) hours is deemed to have predeceased the decedent for purposes of the homestead allowance, year's support allowance, exempt property, elective share and intestate succession, and the decedent's heirs are determined accordingly.

 

Additionally, even if there is a will in place, an individual must survive the testator by 120 hours otherwise they are deemed to have predeceased the testator and will not inherit under the will.  This is true unless the will has specific explicit language dealing with simultaneous deaths or deaths in a common disaster and provides a specific stated period of time the person must survive to take under the will.  Specifically, T.C.A. § 31-3-120(b) provides as follows:

 

(b) A devisee who fails to survive the testator by one hundred twenty (120) hours is deemed to have predeceased the testator, unless the will of the decedent contains language dealing explicitly with simultaneous deaths or deaths in a common disaster or requiring that the devisee survive by a stated period of time in order to take under the will.

 

Additionally, this statute provides that it must be proved by "clear and convincing evidence" that an individual survived the decedent by 120 hours.  This is a high standard under Tennessee law.  Specifically, T.C.A. § 31-3-120(c)...

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TAGS: Intestate Succession, Tennessee Probate Law Comments [0]
  
 

What is a durable power of attorney for healthcare under Tennessee law?

Posted on May 3 2013 4:04PM by Attorney, Jason A. Lee

A durable power of attorney for healthcare is a document that provides powers to an “attorney-in-fact” to make healthcare decisions for the person executing the document (called the “principal”) if they become incapacitated.  There is not requirement for the “attorney-in-fact” to be an attorney; rather he or she can be a spouse, child or anyone the principal desires.  This document is mainly used to provide powers to a specific individual for the purpose of making healthcare decisions for the principal in case that individual is no longer able to make those decisions.

 

In Tennessee there are specific requirements for a durable power of attorney for healthcare to be effective.  They are found, in part, in T.C.A. § 34-6-203(a) which provides as follows:

 

(a) An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied:

(1) The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;

(2) The durable power of attorney for health care contains the date of its execution; and

(3) The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.

 

The first requirement is the document must actually authorize the attorney-in-fact to make healthcare decisions.  The second requirement is the durable power of attorney for healthcare must contain the date it is executed.  The third requirement is the document must be in writing and signed by the principal.  The principal’s signature must either be attested by a notary public with no witnesses, or it must be witnessed by two witnesses without an attestation by a notary public. 

 ...

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TAGS: Durable Power of Attorney for Healthcare, Execution Comments [2]
  
 
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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