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What is a guardian ad litem and what are their responsibilities under Tennessee law?

Posted on Sep 29 2013 10:17PM by Attorney, Jason A. Lee

T.C.A. § 34-1-107 provides that when a party files a petition for the appointment of a fiduciary (usually for a guardianship or conservatorship) the court is required to appoint a guardian ad litem to represent the respondent.  Tennessee law provides that the guardian ad litem owes a duty to the court to “impartially investigate the facts and make a report and recommendations to the court.” T.C.A. § 34-1-107(d)(1).  The guardian ad litem is not an advocate for the respondent but has a duty to determine what is best for the respondent’s welfare.  The guardian ad litem is required under T.C.A. § 34-1-107(d)(2) to do the following:

 

(2) In each proceeding, the guardian ad litem shall:

(A) Verify that the respondent and each other person required to be served or notified was served or notified;

(B) Consult with the respondent in person as soon as possible after appointment;

(C) If possible, explain in language understandable to the respondent the:

(i) Substance of the petition;

(ii) Nature of the proceedings;

(iii) Respondent's right to protest the petition;

(iv) Identity of the proposed fiduciary; and

(v) Respondent's rights as set forth in § 34-3-106; and

(D) Make a report and recommendations to the court concerning the issues of:

(i) Whether a fiduciary should be appointed for the respondent;

(ii) If a fiduciary should be appointed, whether the proposed fiduciary is the appropriate person to be appointed; and

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

Does a respondent have any rights in a proposed conservatorship situation under Tennessee law?

Posted on Sep 26 2013 10:07PM by Attorney, Jason A. Lee

Tennessee law provides specific rights for a respondent who is subject to be placed in a potential conservatorship.  The respondent is the individual who is considered to be unable to take care of themselves and thus in need of a conservatorship where someone is appointed to take care of their legal and personal affairs.  T.C.A. § 34-3-106 provides certain rights to the respondent in a conservatorship proceeding as follows:

 

The respondent has the right to:

(1) On demand by respondent or the guardian ad litem, a hearing on the issue of disability;

(2) Present evidence and confront and cross-examine witnesses;

(3) Appeal the final decision on the petition with the assistance of an attorney ad litem or adversary counsel;

(4) Attend any hearing;

(5) Have an attorney ad litem appointed to advocate the interests of the respondent; and

(6) Request a protective order placing under seal the respondent's health and financial information, including reports provided under § 34-3-105(c).

 

One of the most important rights found in this statute is the right to have an attorney ad litem appointed to advocate as counsel on behalf of the respondent.  This is an important right and this attorney ad litem is an actual advocate on behalf of the respondent to oppose the conservatorship should the respondent request an...

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TAGS: Tennessee Conservatorship Comments [0]
  
 

Tennessee Inheritance Tax – When is the Tennessee inheritance tax due to the Tennessee Department of Revenue?

Posted on Sep 15 2013 9:57PM by Attorney, Jason A. Lee

The inheritance tax is due to the Tennessee Department of Revenue nine months after the death of an individual who owes the tax.  T.C.A. § 67-8-419(a) provides the following:

 

(a) The tax imposed by this part and part 3 of this chapter shall be due and payable nine (9) months after the death of the transferor, or at the expiration of the additional time granted by the commissioner pursuant to § 67-8-409, but such tax may be paid sooner, if assessment thereof has been completed, and if the personal representative desires to make payment.

 

It is important to note that the Commissioner of the Tennessee Department of Revenue has the ability to provide exceptions when the tax payment within the nine month time period would cause an undue hardship on the estate.  The Department of Revenue and the representatives of the estate can enter into an agreement for payment of the inheritance tax in installments or come up with another plan that is appropriate to handle the situation.  T.C.A. §67-8-419(b) provides as follows:

 

(b) When it is shown to the satisfaction of the commissioner that the payment on the due date of any part of the amount determined to be due would impose undue hardship upon the estate, or would necessitate the sale of any portion of the estate at a sacrifice, or at an inadequate price, the commissioner may extend the time for the payment of any such part of the tax, or may enter into an agreement with the representative of the estate for the payment of the tax due thereon in installments. Such an agreement for the payment of the tax in installments, or for the deferment of payments, shall not affect the liability of the estate for interest. The running of the statute of limitations for assessment and collection, as provided in § 67-1-1501, shall be suspended for the period of any such extension. If an extension is granted, the commissioner may, if the comm...

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TAGS: Probate Process, Tennessee Inheritance Tax, Taxes Comments [0]
  
 

In Tennessee, a guardian or conservator must be appointed to distribute a share from an estate to an infant or incompetent individual.

Posted on Sep 8 2013 9:23PM by Attorney, Jason A. Lee

T.C.A. § 30-2-702 discusses how to make payments or distributions to infants and incompetent individuals from an estate.  This applies to individuals who have been adjudicated as incompetent but are without guardians or conservators authorized to receive the property.  The personal representative of the estate, before making the final settlement distribution, is required to file a petition with the court requesting that a guardian be appointed for any minor individual.  If the receiving party is incompetent then the personal representative should request the court to appoint a conservator for the incompetent individual in order to handle the distribution from the estate.

 

T.C.A. § 30-2-702(b) provides specifically as follows:

 

(b)(1) In cases involving payees or distributees who are infants or persons adjudicated incompetent and without guardian or conservator authorized to receive the property, the personal representative, before making final settlement, shall file a petition in the court in which the estate is being administered setting out this fact and pray for the appointment of a guardian or conservator, unless petition is made pursuant to § 34-1-104.

 

(2) The court shall appoint a guardian or conservator, if practicable, or if impracticable, order the property belonging to such infant or person adjudicated incompetent paid or delivered into the state treasury, unless distribution is ordered pursuant to § 34-1-104.

 

(3) The payment or delivery shall be shown in the report and settlement of the personal representative, exhibiting the receipt of the guardian or state treasurer, as the case may be.

 

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

What happens if an incomplete inventory of a deceased individual's assets is filed with the court by the personal representative?

Posted on Sep 2 2013 10:37PM by Attorney, Jason A. Lee

T.C.A. § 30-2-608 allows any individual interested in a deceased person's estate to file notification with the court that an incomplete inventory of the deceased individual's assets was provided to the court.  Specifically, T.C.A. § 30-2-608 provides as follows:

 

Any person interested in any deceased person's estate as legatee, distributee, surviving spouse, creditor, or otherwise, may, at any time before final settlement of the estate, show by proof that the personal representative has not returned a complete inventory, and the article or articles omitted in the inventory shall be debited to the personal representative at the value of the article or articles, unless the personal representative can show a sufficient reason for leaving the article or articles out of the inventory.

 

As a result, any of the individuals listed in this statute (which is basically anyone who would care) can establish by specific proof that a complete inventory has not been provided to the court and that this should be corrected.  Sometimes this may occur because the personal representative does not have specific information about the deceased person's assets that other individuals may have.  On the other hand, sometimes this may occur because the personal representative may leave off certain assets on purpose for inappropriate reasons.  Regardless, the statute provides an avenue for individuals who believe a complete inventory was not provided to contest the inventory submitted by the personal representative.  This can be important to determine the actual size of the estate for distribution and payment of creditors.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Creditor claims, Probate Assets, Tennessee Probate Law 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
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Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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