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Topic: Probate Assets

Methods to Gain Access to a Safety Deposit Box After a Person Dies in Tennessee

Posted on Jan 13 2018 4:41PM by Attorney, Jason A. Lee

A frequent question that is raised following someone death is how someone can get access to their safety deposit box post death in Tennessee.  This includes questions about who is entitled to this access the box in this circumstance.  This issues usually comes to a head when family members are trying to locate a will that cannot be found or to determine if there are any valuables in the box.  The Tennessee legislature adopted a statute to address this specific situation.

 

T.C.A. § 45-2-905 is the statute that addresses access to a safety deposit box after someone’s death but it has several other provisions related to safety deposit boxes that I will not address here.  The key portion for our purpose is found in subsection (c) as follows:

 

(c) Upon the death of the sole or last surviving lessee of a safe deposit box, access is authorized as follows:

(1) The duly qualified executor or administrator of the lessee may have access to and remove contents from the safe deposit box, without inventory unless an inventory is required by the lessor or by court order;

(2) In order to search for and remove any written instrument purporting to be the lessee's last will and testament, or any writing relating to a burial plot or burial instructions, or any writing purporting to be an insurance policy on the life of the lessee, a lessor shall permit a person named in a court order for that purpose, or if no order has been served upon the lessor, the lessee's spouse, parent, adult sibling or adult descendant, or a person named as executor in a copy of the lessee's purported will provided to the lessor, or any person with a right of access to the safe deposit box immediately prior to the death of the lessee, to open the safe deposit box with an officer or employee of the lessor and remove the documents. A record of items removed from the box by the person authorized entry shall be made by the lessor and the other person. If a purported will is found that does not name as executor the person conducting the will search with the lessor's representative, the lessor may make a copy thereof and mail or deliver it to the executor named therein, or to the court having jurisdiction of the decedent's estate according to the decedent's domicile as declared in the instrument; and

(3) If an executor or administrator of the lessee's estate has not requested access to the contents within sixty (60) days following the lessee's death, the lessor may then permit access by the surviving spouse or any next-of-kin of the lessee for the purposes of inventory and the removal of contents. Prior to removal, an officer or employee of the lessor and the surviving spouse or next-of-kin of the lessee shall inventory the contents of the box and prepare a record thereof to be retained by the lessor.

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

Non-Probate Assets in Tennessee

Posted on Oct 12 2017 11:57AM by Attorney, Jason A. Lee

There is often confusion on what type of assets are not considered probate assets in Tennessee.  These types of assets do not require formal estate administration, most of the time.  When you are responsible for handling an estate or are appointed as an executor, you need to determine what assets are required to be brought through the Tennessee probate process and what assets are not required to be brought into Probate.  Planning ahead on this issue is also important for individuals so they can have a streamlined post death estate administration process. 

 

Non-Probate assets in Tennessee include the following:

 

1.          401k plan, IRA plan or other type of retirement plan that has the designation of a specific beneficiary (except where the beneficiary is the person’s estate).

 

2.          Bank accounts, real estate, automobiles or other assets that are titled in the name of the deceased individual and another individual as joint tenants or tenants by the entirety with right of survivorship.  These assets pass immediately upon death to the other individual because they are jointly owned.

 

3.          Assets that are titled in the decedent's name with a "transfer on death" or "pay on death" designation to a specific beneficiary.  This is often done for bank accounts in one person’s name so the money is immediately transferred at the time of death.

 

4.          Life insurance policies that have a specific beneficiary designated other than the estate of the deceased individual.

 

This determination should be made soon after a person dies by the individuals responsible to handle their estate.  This will allow that responsible person to know whether a Will needs to be probated under Tennessee law.


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

Should You Add Your Children to Your Financial Accounts When You Need Financial Assistance Later in Life?

Posted on Jun 25 2017 3:38PM by Attorney, Jason A. Lee

A significant number of older individuals in Tennessee add one or more of their children to their bank accounts to help them manage their finances.  They often do this as joint owners with right of survivorship in order to have them help to pay the bills and to take care of other matters late in life.  This can be an option that sounds very appealing.  However, doing this is a major problem and can cause devastating financial consequences that are completely unintended.   

 

When someone adds another person as a joint owner on the account, any judgments that the other person obtains against them, could lead to collection efforts against your bank account.  Once the other person is an owner, they are an owner of your account for all purposes.  For instance, if one of your children gets into a serious car accident and severely injures or kills someone else, but they have insufficient insurance coverage to pay for the damages, then the injured party could obtain a judgment against them.  They could then execute against your account to pay the judgment.

 

Also, when an individual is added to an account as an owner with right of survivorship, then upon the elderly individuals passing, the entire account passes to the other owner pursuant to the right of survivorship terms.  This can cause an unequal distribution of assets among children.  For instance, even if the Will clearly states that everything should be split between your children equally, this money in the account passes outside of that requirement.  This may not be intended and can cause real problems between family members after their loved one dies. 

 

Additionally, the bank account will be considered part of your child’s assets for purposes of bankruptcy.  If they need to declare bankruptcy, your account could become an asset of the bankruptcy process and you could lose everything.  As a result, there is a tremendous risk in adding even responsible and financially stable individuals as owners of your account.  I recommend against doing this in almost all circumstances because the downside consequences can be so devastating. 

 

There are other options available to you like completing a

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TAGS: Creditor claims, Power of Attorney, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Inventory Requirement Under Tennessee Probate Law

Posted on Oct 2 2016 6:33PM by Attorney, Jason A. Lee

Tennessee law requires the personal representative of the estate to file a complete inventory of the probate estate within sixty days after being appointed as the personal representative for the estate.  This is a very important responsibility of the person who is appointed by the Court to administer 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 under oath with the clerk of the court.  There are some circumstances where no inventory is required, like T.C.A. § 30-2-301, provides that no inventory is required when the will of the deceased specifically excuses the requirement for the filing of an inventory. 

 

In the alternative, when all of the residuary distributees or legatees (commonly referred to as heirs) of an estate agree to waive the requirements of the completion of an inventory, then the inventory requirement can be waived by the probate 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.  Often the inventory provides the heirs with the ability to make sure that all appropriate assets of the estate are properly included in the estate.

 

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TAGS: Probate Process, Probate Assets, Tennessee Probate Law Comments [0]
  
 

What Happens When Joint Owners of a Bank Account Die Simultaneously in Tennessee?

Posted on May 10 2016 1:10PM by Attorney, Jason A. Lee

Sometimes, two individuals who own a bank account as joint tenants with right of survivorship or tenants by the entirety, die at the same time.  In this situation, the question is, what happens to the money in those accounts?  Normally, joint tenant accounts with Right of Survivorship immediately pass to the surviving individual on the account.  However, if there is a simultaneous death, the ownership of these accounts is often an unresolved issue.  Thankfully, Tennessee adopted the Uniform Simultaneous Death Act long ago.  TCA § 31-3-104 provides as follows: 

 

Where there is no sufficient evidence that two (2) joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half ( ½ ) as if one had survived and one-half ( ½ ) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

 

As a result, if two or more individuals own an account as joint tenants or tenants by the entirety, then the account is split among the estates of the individuals who died simultaneously.  As a result, usually this means that their portion of the account would pass pursuant to the provisions in their will because the asset would then become part of the estate (since it no longer passed pursuant to the right of survivorship). 

 

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

In Tennessee Can you Force an Estate to Distribute Assets to the Heirs?

Posted on Jul 5 2015 3:36PM by Attorney, Jason A. Lee

I am often asked to become involved in Tennessee probate estates as the attorney for the beneficiaries of the estate.  Often this is done to make sure the estate is running appropriately and sometimes this is done because my clients simply do not trust the executor or administrator of the estate (both are good reasons to hire an attorney to represent the beneficiaries).  When I am involved in this role for an estate, the most common question I get from my clients is about the timing of when the estate assets will be distributed to the heirs or beneficiaries of the estate. 

 

Often I cannot answer this question to my client’s satisfaction because if I am not the attorney for the estate, it is hard for me to control how promptly and efficiently the estate is handled.  However, Tennessee law is clear that once an estate is open longer than eighteen (18) months, T.C.A. § 30-2-710 provides that a beneficiary or heir of the estate can file a petition in the Court where the estate is pending to compel payment from the estate to the beneficiaries.  T.C.A. § 30-2-710 provides as follows:

 

(a) Any distributee or legatee of the estate may, after the expiration of eighteen (18) months from the grant of letters, apply to the probate or chancery court of the county in which administration was taken out, to compel the payment of the distributee's or legatee's distributive share or legacy.

(b) The application shall be by petition or bill, shall set forth the claim of the applicant as legatee or distributee, shall allege that the assets of the estate are more than sufficient to pay the debts, charges, and other claims, if any, entitled to priority, and be verified, by affidavit.

(c) The proceedings under the application shall be conducted as other equitable actions, and heard and determined summarily as soon as practicable.

 

It is required that the petition must set forth specific allegations that there is money that can be distributed after the debts and claims against the estate are paid.  This petition must be supported by an affidavit.  If the beneficiary or heir does not know this to be true, then they may not be successful in filing such a petition.  Regardless, this petition is a tool to get this process st...


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TAGS: Probate Process, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Confusion on When a Tennessee Probate Estate Should be Opened

Posted on May 17 2015 6:34PM by Attorney, Jason A. Lee

I get a lot of interesting questions when I tell people that I practice Probate law in Tennessee.  One of the things that is most confusing to people is how to know when an actual estate needs to be opened for their loved one.  As a general rule, Tennessee probate estates only need to be opened when there are probate assets.  Probate assets include bank accounts that are not joint and do not have any “pay on death” or “transfer on death” designations.  Other probate assets include real estate when there is no joint, right of survivorship, co-owner.  Probate assets can also include life insurance policies and retirement accounts that do not have a beneficiary or that list the estate as the beneficiary.  These are the most common probate assets that can require an estate to be opened in Tennessee.


A lot of family members who do not receive anything from an estate can be very confused by these rules.  They are often upset because they never see a will or any probate filings.  What I tell them is that if all of the assets are disposed of by other methods (joint ownership of real property, beneficiary designations on accounts or joint ownership of accounts) then they may never see the will or any details concerning what happened to the assets.  There is no central database that allows people to find this information out simply by searching (however, when an estate is opened, it is public record).  Banks, life insurance companies and mutual fund companies will simply quietly disperse the funds to the beneficiaries pursuant to the wishes of the decedent assuming the information they are provided matches their records and policies.


All of this being said, this does not mean that on occasion, sometimes people manipulate the system and get access to accounts and assets improperly.  If you suspect this, often the only thing you can do is to try to force the issue by opening an estate and have an administrator appointed (or be the executor) so that you can investigate and determine if things were handled correctly.  This costs money but I would highly recommend you hire an attorney to assist wit...



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TAGS: Life Insurance, Retirement plans - 401k etc., Real Estate, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Tennessee Raises Amount Allowed For “Small Estate” Probate to $50,000.00 From Prior $25,000.00 Maximum

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

The Tennessee Legislature in the 2014 legislative session passed Public Chapter 829 which raised the amount eligible for the small estate process in Tennessee from $25,000.00 to $50,000.00.  This statute went into effect immediately upon signing on April 29, 2014.  This bill also made other various technical changes to probate law but the most important change for most people was the change to the small estate monetary amount. 

 

As a result, a Tennessee small estate can now be opened under T.C.A. § 30-4-101 et al as long as the estate totals $50,000.00 or less.  The Small Estates Act” of Tennessee was passed in 1972 and has provided a way for individuals to pursue an easier, shorter and more efficient probate estate when the amount of value in the estate is minimal.  Prior to this new statute small estates could only be opened up when the value of the property of decedent did not exceed $25,000.00.  I still recommend that you have an attorney involved to assist you with the small estate process although the attorney fees for a small estate should be much less than for a full probate estate in Tennessee. 

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Probate Process, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Are Bank Accounts with a “Right of Survivorship”, “Pay on Death” or “Transfer on Death” Designation Part of a Probate Estate in Tennessee?

Posted on Jun 8 2014 9:31PM by Attorney, Jason A. Lee

Bank accounts with a ”right of survivorship”, “pay on death” or “transfer on death” designation are generally not part of your probate estate in Tennessee.  These accounts pass pursuant to the specific contract terms for the account.  This is very important to remember when constructing a comprehensive estate plan.  Sometimes people add one or two of their children to their bank accounts late in life in order to help with paying the bills.  This can have a very significant unintended consequence.  If the children were actually added as joint owners on the account with right of survivorship, then the money in that account will pass directly to them upon death.  It will not pass pursuant to the terms in your will.  This could certainly conflict with your intentions to split things equally among your children.    

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 your children, for instance, then make sure the bank accounts do not unintentionally pass a significant amount of money to one of your children simply because they have been added to the account.  People sometimes have their will drafted correctly where it shows all of their assets should be split equally among their children.  However, they do not take into consideration how their bank accounts are listed or owned.  This can cause an unintentionally uneven distribution of assets after your death (this can also happen with 401k assets and Life Insurance policies).  This is why it is important to have a comprehensive discussion with a Tennessee estate planning attorney about your assets and how you want your assets to be passed to your loved ones upon your death.

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

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TAGS: Retirement plans - 401k etc., Probate Assets, Tennessee Probate Law Comments [0]
  
 

In Tennessee How Does Someone get Access to a Safety Deposit Box After a Person Dies to See if they had a Will?

Posted on May 6 2014 9:49PM by Attorney, Jason A. Lee

A question that is often asked is how someone can get access to a safety deposit box of a person who died in Tennessee.  Another important question is who is entitled to this access in this circumstance.  This usually comes up when family members are trying to locate a will or determine if there are any valuables in a safety deposit box.  Thankfully, we have a statute in Tennessee that addresses this specific issue and the protocol to obtain access to the safety deposit box.

 

T.C.A. § 45-2-905 is the statute that addresses this issue but it has several other provisions related to safety deposit boxes.  The key portion for our purpose is found in subsection (c) as follows:

 

(c) Upon the death of the sole or last surviving lessee of a safe deposit box, access is authorized as follows:

(1) The duly qualified executor or administrator of the lessee may have access to and remove contents from the safe deposit box, without inventory unless an inventory is required by the lessor or by court order;

(2) In order to search for and remove any written instrument purporting to be the lessee's last will and testament, or any writing relating to a burial plot or burial instructions, or any writing purporting to be an insurance policy on the life of the lessee, a lessor shall permit a person named in a court order for that purpose, or if no order has been served upon the lessor, the lessee's spouse, parent, adult sibling or adult descendant, or a person named as executor in a copy of the lessee's purported will provided to the lessor, or any person with a right of access to the safe deposit box immediately prior to the death of the lessee, to open the safe deposit box with an officer or employee of the lessor and remove the documents. A record of items removed from the box by the person authorized entry shall be made by the lessor and the other person. If a purported will is found that does not name as executor the person conducting the will search with the lessor's representative, the lessor may make a copy thereof and mail or deliver it to the executor named therein, or to the court having jurisdiction of the decedent's estate according to the decedent's domicile as declared...

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TAGS: Wills, Probate Assets 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
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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