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Topic: Tennessee Probate Law

Confusion on When a Tennessee Probate Estate Should be Opened

Posted on May 17 2015 6:34PM by Attorney, Jason A. Lee

I get a lot of interesting questions when I tell people that I practice Probate law in Tennessee.  One of the things that is most confusing to people is how to know when an actual estate needs to be opened for their loved one.  As a general rule, Tennessee probate estates only need to be opened when there are probate assets.  Probate assets include bank accounts that are not joint and do not have any “pay on death” or “transfer on death” designations.  Other probate assets include real estate when there is no joint, right of survivorship, co-owner.  Probate assets can also include life insurance policies and retirement accounts that do not have a beneficiary or that list the estate as the beneficiary.  These are the most common probate assets that can require an estate to be opened in Tennessee.


A lot of family members who do not receive anything from an estate can be very confused by these rules.  They are often upset because they never see a will or any probate filings.  What I tell them is that if all of the assets are disposed of by other methods (joint ownership of real property, beneficiary designations on accounts or joint ownership of accounts) then they may never see the will or any details concerning what happened to the assets.  There is no central database that allows people to find this information out simply by searching (however, when an estate is opened, it is public record).  Banks, life insurance companies and mutual fund companies will simply quietly disperse the funds to the beneficiaries pursuant to the wishes of the decedent assuming the information they are provided matches their records and policies.


All of this being said, this does not mean that on occasion, sometimes people manipulate the system and get access to accounts and assets improperly.  If you suspect this, often the only thing you can do is to try to force the issue by opening an estate and have an administrator appointed (or be the executor) so that you can investigate and determine if things were handled correctly.  This costs money but I would highly recommend you hire an attorney to assist wit...

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TAGS: Life Insurance, Retirement plans - 401k etc., Real Estate, Probate Assets, Tennessee Probate Law Comments [0]
  
 

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]
  
 
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