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Topic: Tennessee Probate Law

Signatures of Witnesses to Will on Affidavit, but Not on Actual Will Does Not Comply with Tennessee Law

Posted on Mar 22 2015 3:01PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals’ decision of In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. 2015) discussed the requirements for witness signatures on a Tennessee will.  T.C.A. § 32-1-104 has very specific requirements for the execution of a will under Tennessee law.  These requirements are 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.

(2) The attesting witnesses must sign:

(A) In the presence of the testator; and

(B) In the presence of each other.


In the Morris case, the witnesses signed an affidavit attached to the will that attested the will but they did not actually sign on the will document.  The question, therefore, in this case was whether this will complied with Tennessee law and was a valid will to be admitted for purposes of establishing the decedent’s wishes.

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TAGS: Wills, Witnesses to will, Tennessee Probate Law Comments [0]

Facebook Changes Policy for Handling Account After Death

Posted on Feb 22 2015 10:22PM by Attorney, Jason A. Lee

One thing that has become more complex in this changing world of technology is how to handle digital assets after you die.  As we continue forward in time, more and more individuals who die will have a substantial online presence.  Facebook has decided to update its policy and allow individuals to designate a “legacy contact” who can perform certain changes to the account after death. 


According to Facebook’s website, a legacy contact can do the following things:


1) Write a pinned post for your profile (ex: to share a final message on your behalf or provide information about a memorial service)

2) Respond to new friend requests (ex: old friends or family members who weren't yet on Facebook)

3) Update your profile picture and cover photo


This will allow this person to make these specific changes on your Facebook site.  The legacy contact is also restricted from performing certain things such as:


1) Log into your account

2) Remove or change past posts, photos and other things shared on your Timeline

3) Read messages you've sent...

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TAGS: Tennessee Probate Law Comments [0]

How Should you Respond to a Request to Waive Bond, Inventory and Accounting in a Tennessee Estate?

Posted on Jan 25 2015 12:20PM by Attorney, Jason A. Lee

Sometimes when a Tennessee probate estate is opened up, the attorney handling the estate will provide a request to the beneficiaries to waive bond, inventory and accounting [“Bond” is basically an insurance bond to protect the assets of the estate if there is a failure by the executor.  “Inventory and Accounting” are required reports to beneficiaries and the court on the financial status of the estate].  This may be unnecessary in some circumstances if it is actually already waived in the will by the decedent.  However, sometimes wills do not include this language.  Or, many individuals die intestate (without a will).  I often get asked by beneficiaries who receive a request to waive bond, inventory and accounting as to whether they should agree to this request.  When I personally handle estates as the estate attorney I also send out these same letters to beneficiaries on many occasions. 


The short answer on how to handle this situation (and the advice I give to others) is that if the individual is a family member and you trust them to handle the estate appropriately, then I do not see any issue with waiving bond, inventory and accounting.  This is especially true with smaller estates.  However, if there is an estate of a significant size and you have any issues of doubt, hesitation or trust concerning the individual who will be handling the estate, then I suggest that you not waive bond, inventory or accounting.  Refusing to waive these items can force the executor to be more accountable for their actions in the estate (by requiring them to provide financial updates under the statute).


There is no perfect answer to this question but certainly if you do not trust the individual who will be handling the estate, then I recommend you not agree to waive bond, inventory or accounting.  Further, if the individual is someone who is not a family member and it is a sizeable estate, you also need to think long and hard about whether it is appropriate to waive bond, inventory or accounting.  Keep in mind however, that when you do not waive these items, it does increase the cost of estate administration (the insurance bond costs money and the inventory and accounting increase the paperwork and fees of the attorney handling the estate).  Also, if you do not feel comfortable waiving the bond, inventory or accounting, then I would also recommend that you hire an attorney to represent you as a beneficiary in the estate.  This gives you more of a voice in the estate administration process and also provides you with someone who can give you counsel on what is occurring in the estate.


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TAGS: Bond, Tennessee Probate Law Comments [0]

Statute of Limitations to Contest a Tennessee Probated Will is 2 Years From Date of Order Probating Will

Posted on Nov 20 2014 3:23PM by Attorney, Jason A. Lee

In Tennessee we have a two year statute of limitations to set aside the probate of a will.  This two year statute of limitations is calculated from the date the order is entered admitting the will to probate.  If you wait beyond this time period, you likely will not be able to contest a probated will (there are exceptions for minors or those that are adjudicated incompetent).  T.C.A. § 32-4-108 provides as follows:


All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.


Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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TAGS: Statute of Limitations, Minor Children, Tennessee Probate Law Comments [0]

I Am a Beneficiary In a Tennessee Estate, Do I Need an Attorney?

Posted on Nov 9 2014 7:56PM by Attorney, Jason A. Lee

The answer to this question is not easy.  It really depends on the circumstances of your situation.  If there is a good trustworthy executor who hires a good competent attorney to handle a Tennessee estate, then the answer may be no.  However, if you are concerned about the executor’s abilities to be handle the estate (and the estate has some actual value) then I recommend that the beneficiary hire an attorney to assist them with monitoring and following the estate proceedings. 


There are many complicated things that can happen in an estate.  Additionally, there are people out there who take advantage of being an executor of an estate and do things to improperly benefit themselves.  If you have suspicions about these things, it is much better to hire an attorney on the front end (or at least early on) to help you monitor the estate to make sure it is moving forward appropriately.  IT can be very painful and expensive if you delay this and try to fix the situation late in the process (although this is often when I get calls from beneficiaries asking this question).


Additionally, as a beneficiary in Tennessee you are entitled to information and documentation regarding the estate.  If you are not kept up to date on what is going on in the estate by the executor or the estate attorney, then you have a right to demand certain information.  An attorney can file a motion requesting an accounting of the estate along with supporting documentation to show the beneficiary is not being properly advised of what is going on in the estate.  This can be a very useful tool to make sure that the estate is moving forward properly.  Also, when an attorney gets involved for a beneficiary, that can often speed up the estate and there is a heightened awareness of keeping that beneficiary and their attorney up to date on the estate.


If you have suspicions or concerns about an estate in Tennessee, it is best to contact a Tennessee probate attorney to assist you with monitoring the estate. Continue Reading  

TAGS: Tennessee Probate Law Comments [1]

Where is Probate Filed When a Person Dies Outside the State of Tennessee but is a Resident of Tennessee?

Posted on Oct 12 2014 10:28PM by Attorney, Jason A. Lee

I recently had a question about where probate should be filed for a resident of Tennessee when they die outside the State of Tennessee.  The answer to this question is that the probate estate should still be filed in Tennessee (there may some limited exceptions to this general rule, but this is the general rule).  Under Tennessee law, probate is filed in the county of residence at the time of an individual’s passing.  There are two different statutes on this issue, one dealing with intestate (no will) situations and one dealing with situations where there is a will. 


For situations involving a will, T.C.A. § 32-2-101 provides as follows:


Wills shall be proved and recorded and letters testamentary granted in the probate court of the county where the testator had the testator's usual residence at the time of the testator's death, or, in case the testator had fixed places of residence in more than one county, in either or any of those counties.


For situation where there is no will, 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....

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TAGS: Jurisdiction, Tennessee Probate Law Comments [0]

As a Beneficiary to a Tennessee Estate, Can I Hire An Attorney and Will the Estate Pay For My Attorney Fees?

Posted on Sep 21 2014 4:00PM by Attorney, Jason A. Lee

As a beneficiary, you can hire your own attorney to represent you and your interests as a beneficiary.  However, the vast majority of the time, you will be responsible to pay your attorneys legal fees.  However, there are circumstances where an attorney for a beneficiary can apply to the court to have attorney’s fees paid by the estate. 


Most often a beneficiary hires an attorney due to questions or concerns about the executor or executrix and the way the estate is being handled.  Often it can be very helpful in this circumstance to hire an attorney directly to advocate for you as a beneficiary in order to correct any problems or mishandling of the estate.  If you do not act, significant mistakes can be made and potentially estate assets can be compromised which ends up reducing the size of the estate that may be distributed to the beneficiary.  If the beneficiary’s attorney takes actions that directly benefits the estate, then the beneficiary’s attorneys may be awarded attorney’s fees by the court.  The Tennessee Court of Appeals has discussed this general rule as follows:


As a general rule, for attorneys' fees to be allowed out of an estate, the attorney must have been employed by the personal representative of the estate; however, there is an exception where an attorney's services have inured to the benefit of the estate and, in those cases, the court has discretion to allow fees.


Merchants &a...

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TAGS: Tennessee Probate Law Comments [0]

Can a Person Hide a Will From Beneficiaries in Tennessee?

Posted on Sep 14 2014 9:39PM by Attorney, Jason A. Lee

One issue that comes up in Tennessee estates on occasion is when beneficiaries or heirs believe a will has been concealed or hidden by somebody.  Sometimes there are suspicions about a person hiding or even destroying a will that does not benefit them.  The question is then asked, what can be done about this situation? 


Tennessee law clearly provides that destroying or concealing a will to prevent probate is against the law.  Specifically, T.C.A. § 39-14-131 provides that it is a felony to do this in Tennessee.  The entire statute is as follows: 


Any person who destroys or conceals the last will and testament of a testator, or any codicil thereto, with intent to prevent the probate thereof or defraud any devisee or legatee, commits a Class E felony.


As a result, what can you do if you are in this situation?  My recommendation is for you to hire an attorney in your area to send a letter to the suspected individual.  This letter should demand that a copy of the will be produced.  It should cite to this statute that makes it clear that it is illegal to hide or destroy a will.  Often this alone will cause the individual to produce the appropriate will as is required under Tennessee law.  Obviously, if this is unsuccessful then authorities may need to get involved to deal with this situation. 


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

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

Posted on Sep 1 2014 8:52PM by Attorney, Jason A. Lee

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

After Someone Dies What Happens to Their Creditor Debt in Tennessee? Who is Responsible to Pay the Debt?

Posted on Aug 9 2014 2:51PM by Attorney, Jason A. Lee

An individual who dies who owes money to creditors is largely still responsible for that debt after they are deceased.  Specifically, their estate owes the money to the creditors.  Many people are confused about this.  It is important to note that if nobody else was a co-signor or legally responsible for the debt, then family members, even spouses are not necessarily responsible for the debt.  Be very careful when receiving creditor collection calls after your loved ones passing because often they will try to get others to pay the debt of the deceased – often these individuals are not actually legally responsible for this debt.  


Required Notice to Creditors:


If a probate estate is opened up for a deceased person, then the creditors are put on notice of the opening of the estate and they have a certain amount of time (generally 4 months) to file a claim against the estate. See T.C.A. § 30-2-306.  This is a formal requirement and requires an actual filing of the claim in the Tennessee probate estate.  Any and all known creditors must be specifically sent notice of the opening of the estate. See T.C.A. § 30-2-306.  Additionally, an advertisement must be placed in a newspaper on two consecutive weeks to put additional creditors on notice. See T.C.A. § 30-2-306.  If the creditors do not file a claim with the estate within the appropriate statutory time period then their claim can be completely waived.  Additionally, if a probate estate is not opened up in a timely fashion then creditors can actually open up an estate in order to make sure they collect on the amount of money that is owed to the creditor.  Of course this only makes sense if there are actual assets in the estate.  


Creditor Claims Are Extinguished After 12 Months Post-Death:


One other very important thing to know is that if an estate is not opened up until greater than 12 months after death, then you are not required to provide a notice of creditors and the creditor claims against the estate are considered to be expired (except for TennCare).  For this reason, it is extremely important that if you have a claim aga...

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TAGS: Probate Process, Creditor claims, TennCare, Notice Requirements, Tennessee Probate Law Comments [0]

In Tennessee What is an Executor/Executrix, What Do They Do and Who Should you Select?

Posted on Aug 3 2014 9:54PM by Attorney, Jason A. Lee

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

Can a Non-Resident of Tennessee Serve as a Trustee of a Tennessee Trust?

Posted on Jul 13 2014 7:22PM by Attorney, Jason A. Lee

In most circumstances the answer to this question is, Yes.  T.C.A. § 35-50-107 addresses this issue specifically and provides in subsection (a)(2)(D) 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:


(D) Any person may serve as trustee of a trust, regardless of the residence of the trustee;


As a result any resident or non-resident may serve as a trustee of a Trust even if the trustee does not actually live in Tennessee.  This statutes applies when there is an actual person who is serving as a trustee as opposed to a corporate entity of some kind (although there are rules that can allow this as well).  Further, there are specific requirements for non-resident trustee’s to comply with but with the help of a Tennessee attorney, these rules are not too difficult to follow. 


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