|
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.
|
Continue
Reading
|
|
|
|
|
|
|
|
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.
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Jul 30 2017 3:20PM by Attorney, Jason A. Lee
|
Some people decide to
do Wills that are written in their own handwriting (handwritten Wills). It is my advice that this is a very poor
decision and you should always consult a Tennessee Wills attorney to help you make
sure that this very important document is done correctly. Even though that is my best advice, I know
some people will ignore this advice. As
a result, I will answer the question.
Yes, you can have a handwritten Will but it is a very bad idea. A handwritten will is called a holographic
Will. A holographic will must be done in
the handwriting of the testator.
There are three
different types of Wills under Tennessee law that are allowed.
(1) Normal Will with
execution completed pursuant to T.C.A. § 32-1-104.
(2) Holographic Will
pursuant to T.C.A. § 32-1-105 (in handwriting of
the testator)
(3) Noncupative Will
pursuant to T.C.A. § 32-1-106 (will completed while
in imminent peril of death)
Under Tennessee law a handwritten
or holographic Will must comply with the specific requirements found in T.C.A. § 32-1-105 which provides as
follows:
|
Continue
Reading
|
|
|
|
|
|
|
|
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
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Apr 30 2017 2:00PM by Attorney, Jason A. Lee
|
The Tennessee Supreme Court recently decided
an important case on an issue that had not yet been decided in Tennessee. The
case of Darryl F. Bryant,
Sr. v. Darryl F. Bryant, Jr., No. M2014-02379-SC-R11-CV, 2017 WL 1404388 (Tenn.
2017)
decided a key issue pertaining to Joint Tenancy with Right of Survivorship. In
this case, the owner (Ms. Bryant) of the property in question issued a deed
conveying the property to herself and her son as Joint Tenants with Right of
Survivorship. This occurred in 2009. Interestingly, a little bit more than one
year later on September 2, 2010, the original owner, Ms. Bryant, executed
another Quitclaim Deed on the same property. This Quitclaim Deed purported to
convey the property to her grandson, Darryl F. Bryant, Jr. She deeded all of her interests in the
property to this grandson in this deed.
Ms. Bryant died in November of 2013 and then
a dispute arose between Ms. Bryant’s son, Darryl F. Bryant, Sr. and grandson,
Darryl F. Bryant, Jr. The legal issue that governed this situation is whether
Joint Tenancy with the Right of Survivorship can be terminated by one party. In
other words, Ms. Bryant deeded the property as a Joint Tenancy with Right of
Survivorship to herself and her son. She then later deeded her interest in the
property to her grandson (essentially her ½ interest in the Joint Tenancy with
Right of Survivorship). The question, therefore, was whether the second deed
terminated the Right of Survivorship in the first deed, unilaterally, without
permission or input by the co-owner, Darryl Bryant, Sr. If it did not, then Darryl F. Bryant Sr.
would own the property outright due to Ms. Bryan’s death.
The Tennessee Supreme Court analyzed several
prior Tennessee opinions as well as other states’ assessment of this
issue. Ultimately, the Tennessee Supreme
Court found that “joint tenancy with an express right of survivorship may be
severed by the unilateral action of one of the joint tenants and that doing so
converts the estate into a tenancy in common and destroys the survivorship
interests of the original joint tenants.” (Bryant
Sr. at p. 15). In other words, the
conveyance by one of the joint tenancy owners, who owns the property with a
right of survivorship, essentially converts the holding of the property to
tenancy in common when they deed their interest to another party. That is
exactly what occurred in this case. The Court then considered this specific
case and found that when Ms. Bryant conveyed her interest in the property to
the grandson, it severed her joint tenancy with right of survivorship with her
son. At that point, the son and grandson became tenant in common owners and the
right of survivorship was destroyed at that time.
This case can certainly have implications in
estates and real estate transactions. It is an important principle that will
apply to all real estate transactions and estates in Tennessee. The fact there is
a right of survivorship at the time of an original deed does not mean the right
of survivorship can never be modified, as is shown in this case. This is true
even without the approval of all of the owners of the pr...
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Feb 4 2017 12:23PM by Attorney, Jason A. Lee
|
A really interesting question was addressed
by the Tennessee Court of Appeals recently on whether an executor who submitted
a Will for probate and was appointed as executor can subsequently contest the
terms of the Will. The Tennessee Court
of Appeals in the case of In
Re: Estate of Ellra Donald Bostic, No. E2016-00553-COA-R3-CV, 2016 WL 7105213
(Tenn. Ct. App. 2016) dealt with the specific question of whether an
appointed executor can contest the Will that is being probated.
The Court noted that the legal doctrine that
applies is “estoppel”. The reason is
because “executors, as fiduciaries, owe a duty of undivided loyalty to the
Estate and must deal with the beneficiaries in the utmost good faith.” In re: Estate of
Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992). The named executor in a Will has “the duty to
both offer the Will for probate and defend the Will against any challenges to
its validity” citing Love v.
Cave, 622 S.W.2d 52, 57 (Tenn. Ct. App. 1981). The Court cited the most persuasive treatise
on Wills and Probate issues, Pritchard on Wills, which states that “if the
executor had knowledge of defects in the Will but nevertheless proceeded to
probate it then the executor is estopped from contesting the Will.” Bostic
at 4 (citing Pritchard on Wills § 364).
However, the Tennessee Court of Appeals has
also held that an executor is not estopped from challenging a Will after
presenting it to probate when “the executor offered the will for probate in
good faith and without knowledge of the defects in its execution.” Bostic
at 4 (citing McClure v.
Wade, 235 S.W.2d 835, 838 (Tenn. Ct. App. 1950). When this situation occurs, the executor must
resign from her position, and the “trial court should appoint an administrator
of pendente lite to take charge of the estate and represent it during the
pendency of the probate proceedings”. Bostic
at 4. The trial court must make a
determination as to whether the executor is estopped from challenging a Will
based on whether they knew of the defects of the Will at the time the executor
was appointed. This is the initial
threshold inquiry and once the Court makes that decision then the Court can determine
whether the estoppel doctrine applies. Bostic
at 4, 5. In this particular case
(Bostic case), the Court found that the trial court did not perform the proper
analysis and, in fact, shifted the burden on this issue inappropriately and
therefore the was remanded to the trial court to make a determination based on
the Court of Appeals s...
|
Continue
Reading
|
|
|
|
|
|
|
|
Posted on Jan 2 2017 1:23PM by Attorney, Jason A. Lee
|
The IRS
recently announced the new cost of living adjustments to the annual limits
on retirement contributions for 2017.
These limits reflect the amount of money you are able to contribute to certain
tax benefited retirement plans. This can
and should affect how you formulate your estate and retirement planning in
Tennessee.
The new 2016 annual limits for contributions
to a 401(k), 403(b), most 457 plans and the federal government Thrift Savings
Plan remains the same as the prior year at $18,000.00. This number has not changed over the past few
years. The annual catchup contribution allowance
for these plans, available to those over 50, stands at $6,000.00 for 2017. As a
result, someone over the age of 50 can contribute $24,000.00 annually to their
401k.
The limit for contributions to an IRA (Roth
or normal IRA) is also unchanged for 2017.
It remains at $5,500.00. For
those who take advantage of the Roth IRA, the AGI (Adjusted Gross Income)
phase-out level for the ability to contribute was adjusted up for 2017. The phase-out now begins at $186,000.00 for
married couples filing jointly and $118,000.00 for singles and heads of
household. Once you hit these levels, the
ability to contribute begins to phase out – and it is eventually completely
eliminated.
I highly recommend that you work to update
your beneficiary designations on your retirement and other accounts. In Tennessee, if you have a proper
beneficiary designation, these assets can pass outside of probate. If you do not have any designation or if you
name your estate as the beneficiary, then this money will pass through your
estate in the probate process. Many
times the beneficiary designations do not math the Will and that is usually
unintended. Life circumstances change
and this is an important thing to remember so your beneficiary designations
match your intentions that are expressed in your Will.
Follow me on Twitter at @jasonalee
|
Continue
Reading
|
|
|
|
|
|
|
|
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 4 2016 5:25PM by Attorney, Jason A. Lee
|
The 2016 Tennessee
legislature passed Public
Chapter 843 and it changed Will execution witness requirements for certain
Wills executed prior to July 1, 2016.
This statute was passed in order to address a problem that came up due
to recent Tennessee Court of Appeals decision.
The Tennessee Court of Appeals decision was In
Re: Estate of Bill Morris, 2015 WL 557970 (Tenn. Ct. App. 2015). I previously blogged on this
case here. In the Morris
case, the Tennessee Court of Appeals found that witness signatures on the
Affidavit attached to the Will are not the same as having the witnesses actually
sign the Will. As a result, the Court
found that a Will is not valid when the witnesses only sign the Affidavit
attached to the Will.
The Tennessee legislature
essentially reversed this case by amending T.C.A. § 32-1-104. This amendment provides that for any Wills
executed prior to July 1, 2016, a witness signature affixed to an Affidavit
which meets all of the requirements for witnesses under Tennessee law shall be
considered signatures to the Will.
However, this statutory change requires that the signatures are made at
the same time the Testator signs the Will and that the Affidavit contains
language meeting all of the requirements of T.C.A. § 32-1-104(a). As a result, T.C.A. § 32-1-104 now reads as
follows (the new section that is added is subpart (b)):
(a) The execution of a will, other than a holographic or nuncupative
will, must be by the signature of the testator and of at least two (2)
witnesses as follows:
(1) The testator shall signify to the attesting witnesses that the
instrument is the testator's will and either:
(A) The testator sign;
(B) Acknowledge the testator's signature already made; or
(C) At the testator's direction and in the testator's presence have
someone else sign the testator's name; and
(D) In any of the above cases the act must be done in the presence of two
(2) or more attesting witnesses.
|
Continue
Reading
|
|
|
|
|
|
|
|
|