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Posted on Jan 13 2018 4:41PM by Attorney, Jason A. Lee
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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.
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Posted on Oct 12 2017 11:57AM by Attorney, Jason A. Lee
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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.
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Posted on Feb 4 2017 12:23PM by Attorney, Jason A. Lee
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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...
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Posted on Mar 20 2016 8:50PM by Attorney, Jason A. Lee
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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.
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Posted on Sep 1 2014 8:52PM by Attorney, Jason A. Lee
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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.”
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Posted on Aug 3 2014 9:54PM by Attorney, Jason A. Lee
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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.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Jun 1 2014 7:00PM by Attorney, Jason A. Lee
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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...
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Posted on Oct 14 2013 9:09AM by Attorney, Jason A. Lee
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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:
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Posted on May 28 2013 9:00PM by Attorney, Jason A. Lee
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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.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Mar 29 2013 3:44PM by Attorney, Jason A. Lee
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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.
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