Methods to Gain Access to a Safety Deposit Box After a Person Dies in Tennessee

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.

Non-Probate Assets in Tennessee

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.

Can an Appointed Executor Contest the Will They Offered For Probate in Tennessee?

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...

Creditor Claim Priority Under Tennessee Estate Law – Who Gets Paid First?

One question that is often asked is how creditor claims are handled if there is insufficient money in the estate to pay all of the claims.  T.C.A. § 30-2-317 provides a list showing the priority for any creditor claim against the estate of a deceased individual in Tennessee.  Claims and demands against an estate are divided into certain categories and the statue provides the order in which the claims or demands are to be paid.  T.C.A. § 30-2-317 provides the priority for claims against the estate as follows:

(a) All claims or demands against the estate of any deceased person shall be divided into the following classifications, which shall have priority in the order shown:

(1) First: Costs of administration, including, but not limited to, premiums on the fiduciary bonds and reasonable compensation to the personal representative and the personal representative's counsel;

(2) Second: Reasonable funeral expenses;

(3) Third: Taxes and assessments imposed by the federal or any state government or subdivision of the federal or any state government, including claims by the Bureau of TennCare pursuant to § 71-5-116; and

(4) Fourth: All other demands that may be filed as aforementioned within four (4) months after the date of notice to creditors.

Category number four basically provides the last layer of priority and is designed to account for all other possible categories of creditors.  This statute also provides specific instructions to the personal representative of the estate on how to pay the claims according to the priority found in this statute.  T.C.A. § 30-2-317(b) provides as follows:

(b) All demands against the estate shall be paid by the personal representative in the order in which they are classed, and no demand of one class shall be paid until the claims of all prior classes are satisfied or provided for; and if there are not sufficient assets to pay the whole of any one class, the claims in that class shall be paid pro rata.

Tennessee Court of Appeals Finds that Tennessee Estate Must be Opened to File Suit on Behalf of Deceased for Promissory Note Breach of Contract

The Tennessee Court of Appeals in the recent decision of Doris Guyear, Heir of Leroy Guyear, deceased v. Joey Blalock, et al No. M2012-01562-COA-R3-CV, 2014 WL 3697564 (Tenn. Ct. App. 2014) discussed efforts to collect on a promissory note that was owned by a deceased individual.  In this case, the owner of the promissory note died and his widow desired to collect on the promissory note as his heir.  She therefore filed a complaint in the name of his estate to collect on the promissory note.  The problem was, there was no estate opened.  The wife then amended the complaint on several occasions to try to fix the problem by being listed as the “next friend” of the deceased and ultimately as a “partner” of the deceased.  However, the plaintiff never actually opened up an estate for her husband in order to properly proceed with the lawsuit to enforce the promissory note that her husband owned.

As a result, the question addressed by the Tennessee Court of Appeals was whether the wife could bring a suit for the promissory note of her deceased husband without formally opening up an estate.  Ultimately, the Tennessee Court of Appeals found that the spouse could not bring this cause of action for breach of contract for the promissory note in her individual capacity or in the capacities that she attempted.  Rather, the spouse was required to open up an estate in order to properly bring this lawsuit for breach of contract.  The Court specifically stated as follows:

The proper way to establish the respective rights of Leroy Guyear's heirs to his property would have been through the administration of his estate. If Doris Guyear had been appointed as the administrator, then she would have had the right, and perhaps even the duty, to sue on behalf of his estate in order to collect any debts that were owed to her late husband. See, State v. Anderson, 84 Tenn. 321, 338 (1886); Carr v. Lowe's Executor, 54 Tenn. 84, 90 (1871); State v. Fulton, 49 S.W. 297, 301. The trial judge alerted Ms. Guyear to the necessity of opening the estate and becoming its administrator if she wished to bring suit in its name, but she chose not to do that for whatever reason, and rather to amend her complaint by bringing it in her own name and as her late husband's “next friend.”

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. 

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...

Is an accounting required during the probate of an estate for receipts, disbursements, and distributions?

T.C.A. § 30-2-601 provides a requirement that the personal representative of an estate must file an accounting with the clerk of the Probate Court within fifteen months from the date of qualification as the personal representative.  This accounting includes a written report of all receipts, disbursements and distributions of any kind from the estate (as well as identify the remaining assets in the estate).  T.C.A. § 30-2-601(a) provides as follows:

(a) Within fifteen (15) months from the date of qualification, the personal representative shall make an accounting with the clerk of the court exercising probate jurisdiction in the county of the estate. After the first accounting and until the estate is fully administered, the personal representative shall make further accountings annually from the date of the first accounting. The accountings shall state all receipts, disbursements and distributions of principal and income for the accounting period and the remaining assets held in the estate and shall be verified by the oath of the personal representative before the clerk or any person authorized by law to administer oaths in such cases. The final accounting shall state the personal representative has mailed or delivered notice of the requirement to file claims required by § 30-2-306(d) to the creditors of the decedent who were known to or reasonably ascertainable by the personal representative. For good cause shown to the court, it may extend the time for filing the accountings. However, detailed accountings of solvent estates may be waived if:

It is important to note that the accounting required in T.C.A. § 30-2-601 can be waived in two specific circumstances.  Under the statute an accounting of an estate can be waived if:

What is the requirement for taking inventory of the decedent’s possessions and property in a Tennessee probate estate?

Tennessee law requires the personal representative (Executor, Executrix or Administrator of the estate) to make a complete and accurate inventory of the probate estate of a deceased within sixty days after being appointed the personal representative for 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 with the clerk of the court under oath.  However, under T.C.A. § 30-2-301, no inventory is required when the will of the deceased specifically excuses the requirement for the filing of an inventory for an estate (this is generally included in most wills that have been drafted over the last several years).  In the alternative, when all of the residuary distributees or legatees (commonly referred to as heirs) of an estate agree to a waiver of the inventory requirements, then the inventory requirement can be waived by the 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.

What type of notice is required to be provided to beneficiaries under a testate (will) or intestate (no will) situation in Tennessee?

Tennessee law requires that the personal representative for an estate must provide notice to beneficiaries under a will or to those entitled to receive distribution in an intestate situation (where there is no will) within sixty days after being appointed as the personal representative.  T.C.A. § 30-2-301(b)(1) provides as follows:

(b)(1) Except as provided in subdivision (b)(4), the personal representative, within sixty (60) days after entering on the administration, shall notify:

(A) Each legatee or devisee under the will that that person or entity is a beneficiary by sending, by first class mail or personal delivery, a complete copy of the will to those beneficiaries sharing in the residue of the estate, and by sending a copy of the paragraph or paragraphs of the will containing the bequests to those beneficiaries only receiving bequests; and

(B) Each residuary distributee of an intestate deceased person by sending that person a copy of the letters of administration.

After the notice has been provided to the beneficiaries the personal representative for the estate must provide, within the same sixty day notice period discussed above, notice to the clerk with an affidavit of compliance with the notice requirements under T.C.A. § 30-2-301.  Specifically, T.C.A. § 30-2-301(3) provides as follows:

Within the sixty-day period, the personal representative shall also execute and file with the clerk of the court an affidavit that the required copies have been mailed or delivered to the beneficiaries or distributees, and an explanation of efforts to identify and locate beneficiaries or distributees, if any, to whom copies have not yet been sent.

There is an exemption from the notice requirement when the personal representative is the sole beneficiary of the estate.  Compliance with the notice requirements is waived under T.C.A. § 30-2-301(4) in that situation.  Also, if the decedent's will was admitted to probate in solemn form then there is no requirement to notify under T.C.A. § 30-2-301.