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What happens to a Tennessee estate if there is no will and there are no beneficiaries provided for under the intestate succession statute found in T.C.A. § 31-2-104?

Posted on Aug 26 2013 3:31PM by Attorney, Jason A. Lee

Tennessee law provides that the State of Tennessee takes the entire estate if someone dies intestate (without a will) and there are no heirs under intestate succession rules found in T.C.A. § 31-2-104.  Specifically, T.C.A. § 31-2-110 provides as follows:

 

If there is no taker under this chapter, the intestate estate shall escheat to the state of Tennessee under the provisions of chapter 6 of this title.

 

This basically means the State of Tennessee will get all of your assets and possessions if you die without a will and there are no lawful heirs under Tennessee intestate succession statutes.  This is another reason why it is very important to have a will so that even if you do not have heirs under the statutes, the State of Tennessee would not acquire everything you own at your death.  This is exactly what will happen unless you take steps to leave your possession to a friend, church, non-profit organization or some other person or entity of your choice.  Very few people would intentionally leave all of their possessions and property to the State of Tennessee if they knew that is what would occur at their death.

 

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

What is an attorney ad litem in the context of a conservatorship or guardianship petition?

Posted on Aug 19 2013 11:26PM by Attorney, Jason A. Lee

In Tennessee the court is required to appoint an attorney ad litem to represent the respondent (the minor or disabled person) when a petition for a guardianship or conservatorship is filed and that individual does not desire a guardianship or conservatorship.  Specifically, T.C.A. § 34-1-125 provides as follow:

 

(a) The court shall appoint an attorney ad litem to represent the respondent on the respondent's request, upon the recommendation of the guardian ad litem or if it appears to the court to be necessary to protect the rights or interests of the respondent. The attorney ad litem shall be an advocate for the respondent in resisting the requested relief.

(b) The cost of the attorney ad litem shall be charged against the assets of the respondent.

 

As a result, if the respondent requests an attorney ad litem then they are entitled to have one appointed to represent their interest to oppose the proposed conservatorship or guardianship.  Further, if the guardian ad litem recommends an attorney ad litem or it appears to the court that an attorney ad litem is necessary to protect the interest of the respondent, then one must be appointed under the Tennessee statute.  An attorney ad litem serves a role that is different from a guardian ad litem because the attorney ad litem acts as an advocate for the respondent in resisting the requested conservatorship or guardianship.

 

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TAGS: Tennessee Conservatorship, Guardian Ad Litem Comments [0]
  
 

How long must a person be missing under Tennessee law to be considered deceased for estate and probate purposes?

Posted on Aug 13 2013 8:12PM by Attorney, Jason A. Lee

T.C.A. § 30-3-102 provides that an individual who has been absent from their place of residence and unheard of for a period of seven years, when the absence is not explained, is considered to be deceased under Tennessee law.  The state also provides that this presumption can be rebutted by specific proof with a hearing.  The specific statute T.C.A. § 30-3-102 provides as follows:

 

(a) A person absent from such person's place of residence and unheard of for seven (7) years or longer, whose absence is not satisfactorily explained, is presumed to be dead; provided, however, such presumption may be rebutted by proof.

(b) Exposure to specific peril shall be considered in every case. If during such absence the person has been exposed to a specific peril of death, this fact shall be considered by the court, or if there be a jury, shall be sufficient evidence for submission to the jury.

(c) If the clerks of the respective courts of record and/or the personal representatives have any funds belonging to such absentee who, upon the order of the court, is determined to be dead, such funds shall be distributed according to law as of the date of death of the absentee as determined by the court. The validity and effect of the distribution of the property shall be determined by the court having probate jurisdiction administering the estate.

 

When an individual is considered to be deceased under T.C.A. § 30-3-102 then the funds should be distributed pursuant to Tennessee law that existed at the time of the date of the death as determined by the court.  The Probate court has the power to determine appropriate distribution under Tennessee law in this circumstance (depending on whether it is with a will or without a will). 

 

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TAGS: Probate Process, Receivership - Missing Person, Tennessee Probate Law Comments [0]
  
 

What impact does a divorce or annulment have on a written will in Tennessee?

Posted on Aug 4 2013 4:17PM by Attorney, Jason A. Lee

If a will is executed by a testator and then the testator becomes subsequently divorced or the marriage is annulled then that event revokes any benefits for the former spouse under the will.  T.C.A. § 32-1-202(a) provides as follows:

 

(a) If after executing a will the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.

 

Interestingly, if the individuals remarry and the provisions were revoked solely by T.C.A. § 32-1-202, then the provisions of the will are revived by the subsequent remarriage.  Additionally, under T.C.A. § 32-1-202(d) a decree of separation does not actually terminate the actual status of husband and wife and is not considered a divorce for purposes of this section.  This sections provides:

 

(d) For purposes of this section, divorce or annulment means any divorce or annulment that would exclude the spouse as a surviving spouse within the meaning of § 31-1-102(b). A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.

 

Obviously, this statute needs to be considered anytime there is an individual who dies who has been divorced when they still have any provision for their ex-spouse in their will. 

 

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TAGS: Wills, Divorce/Annulment, 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
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Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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