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Posted on Dec 13 2015 4:11PM by Attorney, Jason A. Lee
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A recent Tennessee Court of Appeals decision,
In
re: Estate of Ole Irene Tucker, 2015 WL 7068134 (Tenn. Ct. App. 2015), discussed
how a person qualifies as a person born out of wedlock for purposes of
inheriting from a deceased individual in an intestate situation (a situation
without a will). In this case, an
individual claimed to be a grandchild of a deceased individual. A dispute arose as to whether this individual
was actually the child of her purported father (who was the son of the deceased). The question before the Court was whether
this individual had standing to make a claim under the Tennessee intestate
succession laws against the estate. The
trial court issued an order finding that this individual lacked standing and
could not inherit under Tennessee law because she was not considered a person
born out of wedlock under T.C.A.
§ 31-2-105.
On appeal, the Tennessee Court of Appeals
discussed the statute that governs this issue, T.C.A.
§ 31-2-105. This statute provides as
follows:
(a) If, for purposes of intestate succession, a relationship of parent
and child must be established to determine succession by, through, or from a
person:
(1) An adopted person is the child of an adopting parent and not of the
natural parents except that adoption of a child by the spouse of a natural
parent has no effect on the relationship between the child and that natural
parent; and
(2) In cases not covered by subdivision (a)(1), a person born out of
wedlock is a child of the mother. That person is also a child of the father,
if:
(A) The natural parents participated in a marriage ceremony before or
after the birth of the child, even though the attempted marriage is void; or
(B) The paternity is established by an adjudication before the death of
the father or is established thereafter by clear and convincing proof, but the
paternity established under this subdivision (a)(2)(B) is ineffective to
qualify the father or the father's kindred to inherit from or through the child
unless the father has openly treated the child as the father's, and has not
refused to support the child.
(b) In no event shall a parent be permitted to inherit through intestate
succession until all child support arrearages together with interest thereon at
the legal rate of interest computed from the date each payment was due have
been paid in full to the paren...
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Posted on Apr 27 2014 10:44PM by Attorney, Jason A. Lee
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Analysis: T.C.A.
§ 30-2-101 provides that a surviving spouse of a person who died without a
will (intestate
decedent) or a surviving spouse who elects
against their spouse’s will (this is called an elective share under T.C.A.
§ 31-4-101) is entitled to receive certain exempt property from the
estate. Specifically, the surviving spouse
can receive exempt property having a fair market value that does not exceed
$50,000.00 as stated in T.C.A.
§ 30-2-101 as follows:
(a) The surviving
spouse of an intestate decedent, or a spouse who elects against a decedent's
will, is entitled to receive from the decedent's estate the following exempt
property having a fair-market value (in excess of any indebtedness and other
amounts secured by any security interests in the property) that does not exceed
fifty thousand dollars ($50,000):
(1) Tangible
personal property normally located in, or used in or about, the principal
residence of the decedent and not used primarily in a trade or business or for
investment purposes, and
(2) A motor
vehicle or vehicles not used primarily in a trade or business. If there is no
surviving spouse, the decedent's unmarried minor children are entitled as
tenants in common only to exempt property as described in subdivision (a)(1).
Rights to this exempt property are in addition to any benefit or share passing
to the surviving spouse or unmarried minor children by intestate succession,
elective share, homestead or year's support allowance.
This exempt property is in addition to
other benefits (including the elective share, homestead or year’s support allowance)
the surviving spouse or minor child would receive as specifically stated in
subsection (a)(2). If there is no
surviving spouse then unmarried minor children are entitled to own the exempt
property as tenants in common with each other. Keep in mind that exempt property doe...
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Posted on Mar 3 2014 11:44PM by Attorney, Jason A. Lee
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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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Posted on Dec 2 2013 10:01PM by Attorney, Jason A. Lee
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Sometimes gifts to children during a
decedent's life are considered an advance on an intestate (when the deceased
dies without a will) share under specific circumstances. If the gift is considered an advance, then
the amount a child receives in an intestate situation is reduced by the
advanced amount. T.C.A. § 31-5-101 provides that
property given during the decedent's lifetime to a child should be treated as
an “advance” if one or two circumstances are present:
(a) If an individual dies intestate as to all or a portion of the
individual's estate, property the decedent gave during the decedent's lifetime
to a child of the decedent is treated as an advancement against the child's
intestate share only if:
(1) The decedent declared in a contemporaneous writing, or the child
acknowledged in writing, that the gift is an advancement; or
(2) The decedent's contemporaneous writing or the child's written
acknowledgment otherwise indicates that the gift is to be taken into account in
computing the division and distribution of the decedent's intestate estate.
The value of the advancement is determined
under T.C.A. §
31-5-101(b)
at the time the child came into possession of or enjoyment of the property or
the time of the decedent's death, whichever comes first. Based on the language of the statute, it must
clearly be the intent of the parties to consider the gift as an advance in
order to cause it to reduce the intestate share the child receives.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Oct 27 2013 4:10PM by Attorney, Jason A. Lee
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Analysis: When an individual dies without a will (this
is called “intestate”) then the probate court of the county where the intestate
individual had usual residence at the time of death is the appropriate
jurisdiction for the probate of the estate.
Specifically, T.C.A.
§ 30-1-102 provides as follows:
Letters of
administration shall be granted by the probate court of the county where the
intestate had usual residence at the time of the intestate's death, or, in case
the intestate had fixed places of residence in more than one county, the
probate court of either county may grant letters of administration upon the
intestate's estate.
As a result when an individual dies
without a will and the estate needs to be probated under Tennessee law, the
appropriate jurisdiction is the county where the deceased had a usual
residence. If the individual had
multiple places of residence, then the probate court of any of these counties
can grant letters of administration for probate.
Follow me on Twitter at @jasonalee for
updates from the Tennessee Wills and Estates blog.
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Posted on Aug 26 2013 3:31PM by Attorney, Jason A. Lee
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Tennessee law provides that the State of
Tennessee takes the entire estate if someone dies intestate (without a will)
and there are no heirs under intestate succession rules found in T.C.A. § 31-2-104. Specifically, T.C.A. § 31-2-110 provides as
follows:
If there is no
taker under this chapter, the intestate estate shall escheat to the state of
Tennessee under the provisions of chapter 6 of this title.
This basically means
the State of Tennessee will get all of your assets and possessions if you die
without a will and there are no lawful heirs under Tennessee intestate
succession statutes. This is another
reason why it is very important to have a will so that even if you do not have
heirs under the statutes, the State of Tennessee would not acquire everything
you own at your death. This is exactly
what will happen unless you take steps to leave your possession to a friend, church,
non-profit organization or some other person or entity of your choice. Very few people would intentionally leave all
of their possessions and property to the State of Tennessee if they knew that
is what would occur at their death.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Jun 24 2013 8:22PM by Attorney, Jason A. Lee
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T.C.A.
§ 31-2-105(a)(2) provides the rules to determine when child is considered a
child of a father when the child was born outside of marriage ("wedlock"
is the term used in the statute). Specifically,
T.C.A.
§ 31-2-105 provides as follows:
(a) If, for purposes of intestate succession, a relationship of parent
and child must be established to determine succession by, through, or from a
person:
(1) An adopted person is the child of an adopting parent and not of the
natural parents except that adoption of a child by the spouse of a natural
parent has no effect on the relationship between the child and that natural
parent; and
(2) In cases not covered by subdivision (a)(1), a person born out of
wedlock is a child of the mother. That person is also a child of the father,
if:
(A) The natural parents participated in a marriage ceremony before or
after the birth of the child, even though the attempted marriage is void; or
(B) The paternity is established by an adjudication before the death of
the father or is established thereafter by clear and convincing proof, but the
paternity established under this subdivision (a)(2)(B) is ineffective to
qualify the father or the father's kindred to inherit from or through the child
unless the father has openly treated the child as the father's, and has not
refused to support the child.
(b) In no event shall a parent be permitted to inherit through intestate
succession until all child support arrearages together with interest thereon at
the legal rate of interest computed from the date each payment was due have
been paid in full to the parent ordered to receive support or to the parent's
estate if deceased.
(c) Nothing in this section shall be construed to prevent a child from
inheriting from a parent through intestate succession.
As a result there are two possible ways to
determine whether a child born outside of marriage is considered a child of the
“father” before or after the death of the father. Basically the child is considered to be a
child of the “father” if the parents participated in a marriage ceremony before
or after the birth of the child (even when the atte...
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Posted on Apr 23 2013 10:26PM by Attorney, Jason A. Lee
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Reason Number Three - To try to reduce the likelihood for disagreements and disputes among
family members, friends and potential beneficiaries/heirs after your death.
An individual's death is an extremely
stressful, emotional, and difficult time for family members and friends of the
deceased. There are often underlying
relationship problems of various kinds that exist among family members and
friends of the deceased. Any
pre-existing problems are often exacerbated and even made worse by the stress
and difficulty of dealing with the death of a loved one.
A properly drafted and
executed will in Tennessee gives you the best opportunity to clearly lay out
your intentions to avoid significant disputes over your assets and money. Too many deaths result in family members
fighting. These disputes are not just about
money but can also be about family heirlooms or other items that have no real
material value, but are converted into highly valued emotional objects that
family and friends focus on in their disputes.
A will is a great tool you can use to try to reduce or even eliminate
these disputes because it leaves less wiggle room for family members and
friends to disagree about.
Reason Number Two - To decide who will be the legal guardian for your children after your
death.
A very important component of
a will is that you can select who you desire to be the guardian of your
children. If you have minor children at
the time you die, you can designated in your will who you desire to be the guardian
for your children until they reach the age of majority (18 years of age in
Tennessee). This is one of the most
important decisions you can ever make because the guardians are the individuals
who will raise your children after you are gone.
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Posted on Apr 18 2013 7:56AM by Attorney, Jason A. Lee
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T.C.A. § 31-2-107 provides that "half blood" relatives inherit the same as they would if they were "whole blood" relatives. T.C.A. § 31-2-107 provides as follows:
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
As a result, anytime there are “half blood” relatives in an inheritance situation, keep in mind that the fact they are “half blood” has no bearing on whether they can inherit under Tennessee law.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Apr 12 2013 9:29AM by Attorney, Jason A. Lee
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If a parent owes child support, that parent can not inherit from their child in a situation where the child does not have a will. T.C.A. § 31-2-105(b) provides specific requirements for any parent to inherit from a child when that parent owes child support. This statute provides as follows:
(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.
As a result, a parent must pay all back child support as well as interest from the date each payment was actually due to be made. If the parent to whom child support is owed is deceased, then the surviving parent must make payments owed to the deceased parent’s estate before the parent can inherit from the child.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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