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Posted on Aug 13 2013 8:12PM by Attorney, Jason A. Lee
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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).
Follow me on Twitter at @jasonalee for
updates from the Tennessee Wills and Estates blog.
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Posted on Jul 15 2013 9:39PM by Attorney, Jason A. Lee
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T.C.A.
§ 30-3-104 provides a specific procedure for the appointment of a
receivership for an individual who has gone missing from their place of
residence. Specifically, T.C.A.
§ 30-3-104(a) provides as follows:
(a) When a person
domiciled in this state and having an interest in any form of property
disappears and is absent from the person's place of residence without being
heard of after diligent inquiry, upon application for a finding of such
disappearance and absence and of the necessity for the appointment of a
receiver to the chancery court of the county of the absentee's domicile by any
person who would have an interest in the property were the absentee deceased or
by an insurer or surety or creditor of such absentee, after notice as provided
in § 30-3-106 and upon good cause being shown, the court may find that the
person was last heard of as of a date certain and may appoint a receiver to
take charge of the person's estate. The absentee shall be made a party to the
proceeding, and any other person who would have an interest in the property
were the absentee deceased, upon direction by the court, may be made party to
the proceeding.
Essentially, this statute provides a
procedure for interested individuals to pursue a receivership for someone’s
property if they are missing. Interested
individuals who can pursue such a receivership include someone who would have
an interest in the property if the person was deceased (a beneficiary under a
will or pursuant to intestate succession).
Another category of interested parties would be an insurer or creditor
of the missing party. Under this statute
the interested party can request the court to appoint a receivership to take
care of the estate. Essentially, the
receiver controls and manages the estate.
T.C.A.
§ 30-3-104(b) provides as follows:
(b) The receiver, upon giving bond to be fixed in amount and with surety
to be approved by the court, and upon such conditions as will insure the
conservation of such property, shall, under the direction of the court,
administer the property as an equity receivership with power:
(1) To take possession of all property of the absentee wherever situated;
(2) To collect all debts due the absentee;
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