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Topic: Tennessee Probate Law

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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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]
  
 

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]
  
 

In Tennessee When Does Property Become the State of Tennessee's (Escheats to the State) When an Individual Dies?

Posted on Jan 19 2014 10:55PM by Attorney, Jason A. Lee

Under Tennessee law if there are no beneficiaries or heirs under a will or under intestate succession laws then the property of someone who dies is simply paid to the State (this is called “escheats to the State”).  Basically, if you do not have any close family members that are living and you do not have a will, then all of your money and assets are passed to the State of Tennessee.  T.C.A. § 31-6-101 provides as follows:

 

(a) If a decedent, whether or not domiciled in this state, leaves no one to take the decedent's estate or any portion of the estate by the decedent's will and no one other than a government or governmental subdivision or agency to take the decedent's estate or a portion of the estate by intestate succession, under the laws of this state or any other jurisdiction, the estate escheats as of the time of the decedent's death in accordance with this chapter.

(b) Property passing to the state under this chapter, whether held by the state or its officers, is subject to the same liens, charges and trusts to which it would have been subject if it had passed by will or intestate succession.

 

As a result, it is very important to have a will in Tennessee even if you do not have any close family members.  My advice would be to pick a charity or even close friends to leave your money and property to in this circumstance.  Certainly it is better for you to decide who gets your assets as opposed to simply sending them to the State of Tennessee treasury.  Very few people would make this decision voluntarily if they knew this would be the result of not having a will designating some heir or beneficiary to receive their property.  Additionally, even if you do have a will, make sure there are backup beneficiaries listed in the will so that if your primary beneficiary dies at the same time as you, o...

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

In Tennessee is Life Insurance a Probate Asset that Requires a Probate Proceeding?

Posted on Jan 11 2014 5:39PM by Attorney, Jason A. Lee

The answer is almost always no.  As long as the life insurance policy has named beneficiaries (other than the estate) it is not subject to probate in Tennessee and passes outside of probate. (for a discussion on other assets that are no probate assets read this article here).  Most often, the named beneficiaries simply need to fill out some forms that the life insurance company has and the money will be distributed rather quickly.  This payment is not subject to creditors of the person who died (See T.C.A. § 56-7-201).

T.C.A. § 56-7-201 also provides that even if the estate is listed as a beneficiary of the life insurance policy, the money is still not subject to the debts of the decedent unless specifically stated in the will.  The entire text of T.C.A. § 56-7-201 provides as follows:

On the death of an insured, any life insurance acquired by the insured or the insured's spouse and payable to the intestate insured's estate benefits the surviving spouse and children and the proceeds shall be divided between them according to the statutes of distribution without being in any manner subject to the debts of the decedent. If the proceeds of the insurance are payable to the estate of a testate decedent or the trustee of a revocable trust of which the decedent was a settlor, the proceeds shall pass as part of the estate or trust and under the dispositive provisions of the will or trust agreement, as ordinary cash, whether or not the will or trust agreement uses any apt or express words referring to the insurance proceeds, but the proceeds shall not be subject to the debts of the decedent unless specifically charged with the debts in the will or trust agreement.

As a result, even naming the estate as a beneficiary in your life insurance policy does not have all of the potentially negative baggage for other probate assets.  In fact, there is a good argument that doing so can be a good decision in certain circumstances.  You would need to consult with an experienced Tennessee estate planning attorney to discuss your specific circumstance more.  For a listing of assets that are probate assets, read this article here.

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

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TAGS: Life Insurance, Debts of Estate, Creditor claims, Probate Assets, Tennessee Probate Law Comments [0]
  
 

Under Tennessee law, when are Gifts to a Child of the Deceased Individual Considered an Advance on any Recovery of a Child's Intestate (Without a Will) Share?

Posted on Dec 2 2013 10:01PM by Attorney, Jason A. Lee

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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TAGS: Intestate, Tennessee Probate Law Comments [0]
  
 

In Tennessee what are the Requirements for Making a Payment out of a Probate Estate when an Heir cannot be Located?

Posted on Nov 18 2013 9:33AM by Attorney, Jason A. Lee

T.C.A. § 30-2-702 discusses what happens when the personal representative of an estate for a deceased person is ready to make a final report and distribution settlement and an heir cannot be located.  If an individual who is an heir or who is entitled to a distribution from the estate cannot be located then such share must be paid to the state treasurer as discussed in T.C.A. § 30-2-702 which provides as follows:

 

(a) Whenever the personal representative of the estate of any deceased person in this state is ready to make a final report and settlement, and is prevented or precluded from making final settlement, because there is no personal representative of the estate of a deceased distributee to receive the share due that distributee or one (1) or more payees or distributees cannot be located or for any reason refuses to receive the share due that distributee, the personal representative shall pay or deliver the share due any such distributee to the state treasurer, to be handled in accordance with title 66, chapter 29, part 1, relating to unclaimed property, and show the payment or delivery in the report.

…….

(c) If the personal representative of the estate of a deceased person is unable to locate a distributee and that distributee's share of the estate is either personal property of nominal value or a monetary legacy of nominal value, the personal representative may request instructions from the court concerning the amount, if any, which should be spent in locating the distributee and whether the amount spent in locating the distributee should be a general expense of the estate or a charge against the lost distributee's share and the disposition of the property if the distributee cannot be found, which disposition may include the authority to sell any tangible personal property.

 

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Probate and Estate Planning Conference 2013

Posted on Nov 8 2013 10:14AM by Attorney, Jason A. Lee

I am really enjoying the Tennessee Attorneys Memo 2013 Probate and Estate Planning Conference in Nashville today.  There are lots of important and significant changes to Tennessee law in multiple estate planning areas.  It reminds me of how important it is to review and update your estate plan to see if the changes to the law require changes to your plan.  Fundamental changes to the law can significanly impact the plan you set into place years ago.  For this reason, it is very important to update and review your plan on a consistent basis. 

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Can an Original Will be Compelled to be Produced in the Probate of an Estate under Tennessee law?

Posted on Nov 3 2013 4:50PM by Attorney, Jason A. Lee

An original will can be compelled to be produced in a Tennessee probate estate in certain circumstances.  If fraud is suggested to have been committed in the drafting or obtaining of a last will and testament or if there is any irregularity in the execution or attestation of the will, then a party may insist on the original will being produced.  T.C.A. § 32-2-109 provides as follows:

 

(a) When any fraud is suggested to have been committed in the drawing or obtaining any last will, or any irregularity in the executing or attestation of the will, the party making the suggestion may insist upon the original will being produced to the court, if the original is to be found.

(b) The court, wherever any suit is pending, and in which such a domestic will may be introduced as testimony, may compel all and every person or persons, whether in office or otherwise, to produce the will.

 

Additionally, T.C.A. § 32-4-106 provides that a copy of a will can be used in probate court.  T.C.A. § 32-4-106 provides as follows:

 

If the original will is lost or mislaid so that it cannot be produced on the trial of the issue, but the paper has been copied into the pleadings, or spread upon the minutes of the court, the court may proceed with the trial of the issue in the same manner as if the original were in existence and before it.

 

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TAGS: Probate Process, Administration of Testate Estate, Wills, Tennessee Probate Law Comments [0]
  
 

When an Individual Dies Without a Will (Intestate) what County Handles the Probate of the Estate in Tennessee?

Posted on Oct 27 2013 4:10PM by Attorney, Jason A. Lee

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. 

 

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TAGS: Intestate, Administration of Intestate Estate, Jurisdiction, Probate Process, Tennessee Probate Law Comments [0]
  
 

Tennessee Inheritance Tax – Are Life Insurance Policies Included in the Estate of the Decedent for Tennessee Inheritance Tax Purposes?

Posted on Oct 20 2013 10:33PM by Attorney, Jason A. Lee

Under T.C.A. § 67-8-306, life insurance policies are included in the gross estate of the decedent when calculating the size of the estate of inheritance tax purposes.  This is true whether the policies of insurance are payable to named beneficiaries or to the decedent’s estates.  This is a general rule and the complete statute is as follows:

 

(a) If the decedent was a resident of this state, there shall be included in the gross estate the proceeds of insurance policies payable to named beneficiaries, or to the decedent's estate, or in such manner as to be subject to claims against the decedent's estate and to distribution as a part thereof.

(b) This section shall include the proceeds of insurance policies commonly known as “paid-up contracts” or “investment contracts” or “annuity contracts” or similar types or forms of policies, the surrender value of which was subject to the control of the decedent prior to death.

(c) Where life insurance, the proceeds of which are under the control of the decedent, is left by the decedent in such manner that the proceeds thereof cannot be subjected to the payment of the decedent's debts and where the proceeds of such insurance are received by beneficiaries thereof and are not subjected to the debts of the decedent, the fact that the decedent may have been insolvent and that a portion of the decedent's debts may remain unpaid shall not affect the liability for inheritance tax upon such insurance.

 

A lot of people forget to consider life insurance policies when making a determination of potential estate tax liability.  This must be taken into consideration in Tennessee.

 

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TAGS: Life Insurance, Tennessee Inheritance Tax, Taxes, Tennessee Probate Law Comments [0]
  
 

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

Posted on Oct 14 2013 9:09AM by Attorney, Jason A. Lee

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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TAGS: Probate Process, Executor/Executrix, Tennessee Probate Law Comments [0]
  
 
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