|
Posted on Nov 13 2016 8:25PM by Attorney, Jason A. Lee
|
A surviving spouse has the ability to obtain
an elective share (see prior post
describing the details of an elective share under Tennessee law) of a decedent's
property by filing a notice with the court.
The surviving spouse is required to file a petition for an elective
share within nine months after the date of the death of their spouse. T.C.A. § 31-4-102(a)(1) provides as
follows:
(a)(1) The surviving
spouse may elect to take the spouse's elective share in decedent's property by
filing in the court and mailing or delivering to the personal representative,
if any, a petition for the elective share within nine (9) months after the date
of death.
Additionally, an
extension of the 9-month time period is allowed if there is litigation pending
about the title of certain property such that an elective share determination could
not be made with sufficient information.
If this type of litigation is going on, then the surviving spouse has an
additional year from the date of the probate of the will within which to make
the election. T.C.A. § 31-4-102(a)(2) provides as follows:
(2) When the title
of the surviving spouse to property devised or bequeathed by the will is
involved in litigation pending so that an election to take the elective share
cannot be advisedly made, the survivor shall have an additional year from the
date of the probate of the will within which to elect; provided, that the court
may upon a proper showing further extend the time to meet the exigency of
litigation, not concluded, and, that application for allowance of additional
time, in either case, be made to the court, for record of its action thereon.
The surviving spouse
may also withdraw a request for elective share at any time before the entry of
a final determination by the court. (See
|
Continue
Reading
|
|
|
|
|
|
|
|
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.
Follow me on Twitter at
|
Continue
Reading
|
|
|
|
|
|
|
|
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...
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Aug 9 2014 2:51PM by Attorney, Jason A. Lee
|
An individual who
dies who owes money to creditors is largely still responsible for that debt
after they are deceased. Specifically,
their estate owes the money to the creditors. Many people are confused about this. It is important to note that if nobody else
was a co-signor or legally responsible for the debt, then family members, even
spouses are not necessarily responsible for the debt. Be very careful when receiving creditor
collection calls after your loved ones passing because often they will try to
get others to pay the debt of the deceased – often these individuals are not actually
legally responsible for this debt.
Required Notice to
Creditors:
If a probate estate
is opened up for a deceased person, then the creditors are put on notice of the
opening of the estate and they have a certain amount of time (generally 4
months) to file a claim against the estate. See T.C.A.
§ 30-2-306. This is a formal
requirement and requires an actual filing of the claim in the Tennessee probate
estate. Any and all known creditors must
be specifically sent notice of the opening of the estate. See T.C.A.
§ 30-2-306. Additionally, an advertisement
must be placed in a newspaper on two consecutive weeks to put additional
creditors on notice. See T.C.A.
§ 30-2-306. If the creditors do not
file a claim with the estate within the appropriate statutory time period then
their claim can be completely waived.
Additionally, if a probate estate is not opened up in a timely fashion
then creditors can actually open up an estate in order to make sure they
collect on the amount of money that is owed to the creditor. Of course this only makes sense if there are
actual assets in the estate.
Creditor Claims Are
Extinguished After 12 Months Post-Death:
One other very
important thing to know is that if an estate is not opened up until greater
than 12 months after death, then you are not required to provide a notice of
creditors and the creditor claims against the estate are considered to be
expired (except for TennCare). For this
reason, it is extremely important that if you have a claim aga...
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Aug 3 2014 9:54PM by Attorney, Jason A. Lee
|
An executor or
executrix is someone that you designate in your will to administer your estate. Often times, this individual is now called
your “personal representative”. This is
a very important position and you need to be very careful in selecting who you
want to handle these duties. Basically,
you need to make sure that you select someone for this position that you
absolutely trust. The most common selections
for people to serve in this role are (1) spouse and (2) a child (once the
children are older).
The executor or
executrix is ultimately the individual responsible to move forward with the
probate of your will, if necessary. This
individual is required to comply with Tennessee law and deadlines for
administering your estate. This includes
putting creditors on notice, filing appropriate paperwork with the Probate
Court and eventually distributing your assets as you desire in your will. In almost all circumstances I recommend that an
executor or executrix in Tennessee should hire an attorney to assist them in
these matters to make sure that they comply with their duties under Tennessee
law.
It is important to
note that there are many statutes that govern the responsibilities of an
executor or executrix. This is why a Tennessee
attorney should be consulted to ensure compliance with those statutes. If Tennessee law is not complied with, the
executor or executrix can be found personally responsible for any losses or inappropriate
distributions from the estate. This can
sometime be a very large amount of money.
It is simply not worth it to handle these duties without
representation. That is the classic “penny
wise but pound foolish” scenario.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
|
Continue
Reading
|
|
|
|
|
|
|
|
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.
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Jun 1 2014 7:00PM by Attorney, Jason A. Lee
|
The short answer to this question is yes,
in most circumstances. T.C.A.
§ 30-1-116 provides as follows:
No nonresident
person, bank or trust company may be appointed as the personal representative
of an estate of a decedent, except as provided in § 35-50-107.
As a result, we need to look at T.C.A.
§ 35-50-107 to determine the answer to this question. This statute in subsection (a)(2)(B) provides
as follows:
(2) The following
nonresident persons or corporations may serve as fiduciaries, whether the
appointment is by will, deed, trust agreement, court order or decree or
otherwise:
…
(B) Any resident or nonresident person may
serve as a personal representative of the estate of a decedent;
As a result, any nonresident person can
serve as the personal representative (executor, executrix or administrator) of
an estate of a decedent. This applies as
long as the personal representative is an actual person and not a corporate
entity...
|
Continue
Reading
|
|
|
|
|
|
|
|
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...
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Nov 18 2013 9:33AM by Attorney, Jason A. Lee
|
T.C.A. § 30-2-702 discusses what
happens when the personal representative of an estate for a deceased person is
ready to make a final report and distribution settlement and an heir cannot be
located. If an individual who is an heir
or who is entitled to a distribution from the estate cannot be located then
such share must be paid to the state treasurer as discussed in T.C.A. § 30-2-702 which provides as
follows:
(a) Whenever the
personal representative of the estate of any deceased person in this state is
ready to make a final report and settlement, and is prevented or precluded from
making final settlement, because there is no personal representative of the
estate of a deceased distributee to receive the share due that distributee or
one (1) or more payees or distributees cannot be located or for any reason
refuses to receive the share due that distributee, the personal representative
shall pay or deliver the share due any such distributee to the state treasurer,
to be handled in accordance with title 66, chapter 29, part 1, relating to
unclaimed property, and show the payment or delivery in the report.
…….
(c) If the
personal representative of the estate of a deceased person is unable to locate
a distributee and that distributee's share of the estate is either personal
property of nominal value or a monetary legacy of nominal value, the personal
representative may request instructions from the court concerning the amount,
if any, which should be spent in locating the distributee and whether the
amount spent in locating the distributee should be a general expense of the
estate or a charge against the lost distributee's share and the disposition of
the property if the distributee cannot be found, which disposition may include
the authority to sell any tangible personal property.
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Nov 3 2013 4:50PM by Attorney, Jason A. Lee
|
An original will can be compelled to be
produced in a Tennessee probate estate in certain circumstances. If fraud is suggested to have been committed
in the drafting or obtaining of a last will and testament or if there is any
irregularity in the execution or attestation of the will, then a party may
insist on the original will being produced.
T.C.A.
§ 32-2-109 provides as follows:
(a) When any fraud is suggested to have been committed in the drawing or
obtaining any last will, or any irregularity in the executing or attestation of
the will, the party making the suggestion may insist upon the original will
being produced to the court, if the original is to be found.
(b) The court, wherever any suit is pending, and in which such a domestic
will may be introduced as testimony, may compel all and every person or
persons, whether in office or otherwise, to produce the will.
Additionally, T.C.A.
§ 32-4-106 provides that a copy of a will can be used in probate
court. T.C.A.
§ 32-4-106 provides as follows:
If the original
will is lost or mislaid so that it cannot be produced on the trial of the
issue, but the paper has been copied into the pleadings, or spread upon the
minutes of the court, the court may proceed with the trial of the issue in the
same manner as if the original were in existence and before it.
|
Continue
Reading
|
|
|
|
|
|
|
|
|