When is a Surviving Spouse Required to Make Election to Obtain Elective Share Against the Estate in Tennessee?

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

Inventory Requirement Under Tennessee Probate Law

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.

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

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...

After Someone Dies What Happens to Their Creditor Debt in Tennessee? Who is Responsible to Pay the Debt?

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...

In Tennessee What is an Executor/Executrix, What Do They Do and Who Should you Select?

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. 

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

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. 

Can a Nonresident of Tennessee Serve as an Executor of a Tennessee Estate?

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...

In Tennessee can a Will Submitted to Probate in Solemn Form be Challenged by a Later Filed Will Contest?

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...

In Tennessee what are the Requirements for Making a Payment out of a Probate Estate when an Heir cannot be Located?

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.

Can an Original Will be Compelled to be Produced in the Probate of an Estate under Tennessee law?

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.