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

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...

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TAGS: Solemn Form Probate, Probate Process, Wills, Will Contest, Tennessee Probate Law Comments [0]
  
 

In Tennessee How Does a Court Determine if the Intentions Stated in a Will are Clear Enough to Enforce?

Posted on Apr 13 2014 9:13PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision, Donna Perdue v. Estate of Daniel Jackson, No. W2012-02710-COA-R3-CV, 2013 WL 2644670 (Tenn. Ct. App. 2013) discussed how clear a will must be in order to be enforceable.  The will in this case was a holographic will (which simply means that the will was in the handwriting of the deceased person).  One party asserted the will was not clear enough to enforce in Tennessee probate court.  This case was ultimately appealed to the Tennessee Court of Appeals and the Court provided a helpful discussion about how Tennessee courts should determine if a will is clear enough to enforce. 

 

The Tennessee Court of Appeals discussed that the “purpose of a suit to construe a will is to ascertain and give effect to the testator's intention.” Perdue at 3.  The court noted that “it is the absolute right of the testator to direct the disposition of his property and the Court's [sic] are limited to the ascertainment and enforcement of his directions.”  Perdue at 3.  (citing Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990).

 

In discussing how to determine the intent of the testator, the Court provided an excellent description of the specific considerations of the Court when determining how to evaluate the language in the will.  The Court stated:

 

The cardinal rule in construction of all wills is that the court shall seek to discover the intention of the testator and give effect to it unless it contravenes some rule of law or public policy.  In seeking out the testator's intent, we have several rules of construction to aid us in that effort.  However, all rules of construction are merely aids in ascertaining the intent of the testator.

 

In gleaning the testator's intent, we look to the entire will, including any codicil.  The testator's intent is to be determined from the particular words used in the will itself, and not from what it is supposed the testator intended.  Where the will to be construed was drafted by the testator himself who was not versed in the law and without legal assistance the court in arriving at the intention of the testator should construe the language of the will with liberality to effectuate what appears to be the testamentary purpose.  We are also guided by an additional principle of construction; when a decedent undertakes to make a will, we must presume that the decedent intended to di...

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TAGS: Holographic Will, Wills Comments [0]
  
 

Error of Signing Affidavit Attached to Will, Instead of Will, Invalidates Will in Tennessee Supreme Court Decision

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

The Tennessee Supreme Court recently decided an interesting case on the proper execution of a will in Tennessee [In re: Estate of Thomas Grady Chastain, 401 S.W.3d 612 (Tenn. 2012)].  This case dealt with a situation where the decedent failed to put his signature on his two page will.  He did, however, sign a one page affidavit of attesting witnesses that was purported to be attached to the will.  Chastain, at 615, 616.  The questions before the Tennessee Supreme Court was whether this was sufficient to qualify as the decedent’s signature and whether this should be accepted by the Court as the last will and testament of the decedent. 

 

The statutory requirements under Tennessee law for the signing of a will are found in T.C.A. § 32-1-104 and provide as follows:

 

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.

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TAGS: Wills, Witnesses to will, Execution Comments [0]
  
 

Are Investment Options Limited for a Conservator or Guardian who Invest Funds for the Benefit of the Minor or Disabled Person Under Tennessee Law?

Posted on Mar 30 2014 9:58PM by Attorney, Jason A. Lee

A fiduciary (normally a conservator or guardian) is limited in what investments can be made with the money that is the property of a minor or disabled person.  Tennessee law requires that all funds held by a fiduciary must be invested within 45 days of receipt of the funds unless otherwise ordered by the court. (See T.C.A. § 34-1-115). 

 

The type of investments that can be made by the fiduciary are outlined in T.C.A. § 35-3-101 et al.  This set of statutes is too long to repeat here but includes a detailed list of available investments that includes a significant amount of options for the preservation and potential growth of the assets of the minor or disabled person.  These statutes should be reviewed whenever a conservator or guardian is trying to make a decision on what types of investments can be made with the money. 

 

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

New Tennessee Wills and Estates Facebook Page

Posted on Mar 25 2014 4:25PM by Attorney, Jason A. Lee

I now have a Facebook page for Tennessee Wills and Estates.  I plan to post my blog content to Facebook on a weekly basis.  This is an easy way to follow my blog posts and stay up to date on issues that impact Tennessee estate planning.  You can “Like” the page HERE.

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TAGS: Welcome, Wills, Tennessee Probate Law Comments [0]
  
 

Is a 401k Distributed Pursuant to your Will and is it Part of a Probate Estate in Tennessee?

Posted on Mar 21 2014 12:45PM by Attorney, Jason A. Lee

One thing a significant amount of people do not realize is that a 401K is not necessarily part of someone’s estate in Tennessee.  As a result, almost always 401k assets are not distributed pursuant to the intentions expressed in your will.  Some people believe a 401k passes pursuant to whatever terms are in their will but this is simply not true.  As a general rule, when someone dies, their 401k proceeds are not distributed under the will.  They are instead distributed based on the beneficiary designations in the 401k.  This is important to remember when constructing an appropriate estate plan.  It also should cause you to check your beneficiary designations periodically to make sure they match your intentions. 

 

However, there are some circumstances where the 401k could be paid to the estate (and therefore pursuant to the will).  For instance, if somebody does not list any beneficiary on the 401k, then the proceeds would be paid into the estate (unless the 401k plan documents dictate otherwise).  Additionally, people can list their estate as the beneficiary for the 401k.  There are only a very limited number of circumstances where this would be appropriate.  Due to the tax and other consequences of such a designation, it is almost always better to list an individual as the beneficiary of a 401k. 

 

Due to the fact the 401k money is generally distributed pursuant to the beneficiary designation, the 401k assets are not part of a probate estate (however, they are still counted for purposes of the Tennessee Inheritance Tax and Federal Estate Tax).  This is usually a positive so you can avoid the claims of creditors in a probate estate and so the money can be distributed to the beneficiaries faster.

 

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 all of your children, for instance, then make sure your beneficiary designations on your 401k and life insurance policies reflect this intention.  Sometimes people have their will done correctly where it shows that all their assets should be split equally among their children, but they do not pr...

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TAGS: Life Insurance, Retirement plans - 401k etc., Wills, Creditor claims, Probate Assets Comments [0]
  
 

How Much Does it Cost to Have a Will Drafted in Tennessee?

Posted on Mar 7 2014 4:17PM by Attorney, Jason A. Lee

One of the most frequent questions I am asked is “How much does it cost to have an attorney draft a will in Tennessee?”  People often believe that obtaining necessary and important documents such as a Will, Power of Attorney, Healthcare Power of Attorney and Living Will is a very expensive and complicated process.  This is absolutely not true!  Many people are surprised when I tell them the actual cost of having these documents prepared.  With this in mind, I have decided to share my pricing for these documents so that people can be properly informed on the actual costs to have an estate planning package drafted by an attorney.  The cost is very insignificant when compared to the importance of having your final affairs in order. 

 

For the vast majority of individuals, my cost to prepare an estate package including a Will, Power of Attorney, Healthcare Power of Attorney and Living is a flat rate of $350.00.  I charge this same flat rate for both single individuals and married couples.  This is the total charge, which means for a married couple, a total of eight documents would be prepared for $350.00. 

 

As I have previously indicated in my blog, all of these documents are essential for everyone to have.  This price assumes everything, with the exception of signing the documents, can be done by email and telephone for the exchange of information and discussion about estate planning decisions to be made based on the individual circumstances.  This is generally a very easy process.  I have detailed questionnaires that you, and if applicable, your spouse can complete on your own time to make all of the necessary decisions.  You can email, fax or mail the questionnaires back to me once complete.  From there, I draft the estate planning documents.  I then send them to you for approval and will address any questions you may have.  Once the documents are in final form, a meeting is scheduled at my office in Nashville, Tennessee, to sign (aka “execute”) the documents.  The execution of all the documents with a notary and witnesses takes approximately 45 minutes.

 

Some people prefer to meet with me in person to discuss strategy and decisions before the documents ar...

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TAGS: Wills, Durable Power of Attorney for Healthcare, Power of Attorney, Living Will Comments [0]
  
 

Probate Law - When does Real Property become the Property of the Beneficiaries in Tennessee?

Posted on Mar 3 2014 11:44PM by Attorney, Jason A. Lee

Under Tennessee law, real property of an intestate decedent (an individual who dies without a will) vests immediately in the heirs upon death.  Additionally, the real property of a testate decedent (an individual who dies with a will) vests immediately in the beneficiaries named in the will unless the will gives directions to administer the real property through the estate.  T.C.A. § 31-2-103 provides in totality as follows:

 

The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent's personal property is insufficient for the discharge or payment of a decedent's obligations, the personal representative may utilize the decedent's real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent's heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in decedent's will.

 

This statute does not mean that real property cannot be used to pay any debts or obligations of the decedent.  This statute specifically provides that if the decedent's personal property is insufficient to discharge all of the decedent's obligations then the real property can be sold to satisfy those obligations.  It is important to have an experienced Tennessee probate attorney to assist you when dealing with real estate property in the context of an estate.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Intestate, Administration of Intestate Estate, Administration of Testate Estate, Real Estate, Creditor claims, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Is a Conservator or Guardian Required to File an Inventory of the Property After a Conservatorship or Guardianship is Approved in Tennessee?

Posted on Feb 24 2014 11:14AM by Attorney, Jason A. Lee

A fiduciary (usually a conservator or guardian) who is responsible to manage the property of a minor or disabled person, is required to file an inventory with the court within 60 days after their appointment as a fiduciary.  T.C.A. § 34-1-110(a) provides as follows:

 

(a) If the fiduciary is to manage the property of the minor or person with a disability, within sixty (60) days after appointment, the fiduciary shall file a sworn inventory containing a list of the property of the minor or person with a disability, together with the approximate fair market value of each property and a list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue. If the required information was included in the petition but not separately stated as an inventory, the inventory shall repeat the information provided in the petition and add any later discovered property or income sources.

 

It is very important for this inventory to be completed.  T.C.A. § 34-1-110(b) provides the court with the ability to hold the conservator or guardian in contempt of court if they fail to comply.  Additionally, under T.C.A. § 34-1-110(c) the court may enter an order revoking the fiduciary’s authority and appointing a substitute fiduciary.  If you have been appointed as a conservator or guardian in...

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TAGS: Tennessee Conservatorship Comments [0]
  
 

Tennessee and Federal Estate Tax – Are Revocable Living Trusts Included in the Taxable Estate of a Tennessee Decedent?

Posted on Feb 16 2014 11:30PM by Attorney, Jason A. Lee

A question that is often asked is whether putting money in a revocable or living trust somehow excludes that money from the taxable estate for Tennessee or Federal Inheritance tax purposes.  T.C.A. § 67-8-307 provides that trust property is included in the taxable estate when the decedent reserves the right to revoke, alter or amend the trust so the decedent could retain the property (basically any revocable or living trust).  As a result, property in revocable or living trusts is generally considered to be included in the estate of the decreased for purpose of Tennessee Inheritance Tax purposes (as well as Federal Estate tax purposes).  T.C.A. § 67-8-307 provides as follows:

 

The gross estate of a resident shall include property specified in § 67-8-303(a)(1), and the gross estate of a nonresident shall include property specified in § 67-8-303(a)(2) transferred by the decedent by deed of trust in which the decedent reserved to the decedent, alone or in conjunction with others, powers of revocation, alteration or amendment, upon the exercise of which such property would revert to the decedent, to the extent of the value of such property subject to such powers and with respect to which such powers remained unexercised.

 

You should be very skeptical of any revocable or living trust product that claims to remove the property from the taxable estate.  Additionally, keep in mind that in Tennessee the Inheritance Tax will be abolished effective January 1, 2016.  Further the exemption for the Federal Estate tax is currently at $5,340,000.00 so very few people in fact actually need to worry about Federal Estate tax.  Fear of this tax often drives people to complicated trust products or expensive estate tax avoidance packages, however, this is usually unnecessary when simplicity would be the better path to take, when all things are considered.  I preach simplicity in Tennessee estate planning because often people do not follow through with the more complicated product designs and 99% (or more) of the population simply does not need complicated estate planning techniques.

 

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TAGS: Tennessee Inheritance Tax, Taxes, Federal Estate Tax Comments [0]
  
 

Newly Released 2013 Tennessee Probate and Conservatorship Case Filing Statistics

Posted on Feb 9 2014 10:30PM by Attorney, Jason A. Lee

Newly released statistics on the number of Tennessee Probate and Conservatorship cases filed each year show that annual filings of Probate and Trust matters are increasing on a consistent basis.  Conservatorship matters, on the other hand, remain at a pretty consistent level over the last 6 years.  The Tennessee Judiciary recently published their annual report providing statistics on case filings and other important Tennessee legal system information.  This new report covers fiscal year 2012-2013 (July 1, 2012 – June 30, 2013) and is the most recent report available.    

 

The total number of Probate and Trust case filings in Tennessee courts from 2007 to 2013 are as follows:

 

            2007-2008                                                                     11,875

            2008-2009                                                                     11,785

            2009-2010                                                                     12,246

            2010-2011             &n...

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TAGS: Tennessee Conservatorship, Tennessee Probate Law Comments [0]
  
 

Who Pays for the Fees and Costs for the Appointment of a Conservator or Guardian Under Tennessee law?

Posted on Feb 4 2014 11:17PM by Attorney, Jason A. Lee

T.C.A. § 34-1-114 provides that if a fiduciary (Conservator or Guardian) is appointed by the Court then the cost of the proceedings including court costs, guardian ad litem fee, required medical examination costs and attorney’s fees can be charged against the property of the respondent.  The respondent is the person who is the “person with disability” or minor that is subject to the conservatorship or guardianship.  The term “disabled person” is defined in T.C.A. § 34-1-101 as follows:

 

(13) “Person with a disability” means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity;

 

If no fiduciary is appointed (in other words if the court rejects the petition for a conservatorship or guardianship) then the cost of the proceeding will be charged against the party that petitioned the court for the appointment of a conservator or guardian. 

 

T.C.A. § 34-1-114 provides as follows:

 

(a) The costs of the proceedings, which are the court costs, the guardian ad litem fee and expenses incurred by the guardian ad litem in conducting the required investigations, the required medical examination costs, and the attorney's fee for the petitioner, may, in the court's discretion, be charged against the property of the respondent to the extent the respondent's property exceeds the supplemental security income eligibility limit, or to the petitioner or any other party, or partially to any one or more of them as determined in the court's discretion. In exercising its discretion to charge some or all of the costs against the respondent's property, the fact a conservator is appointed or wou...

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TAGS: Tennessee Conservatorship, Guardian Ad Litem Comments [0]
  
 
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