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Topic: Tennessee Probate Law

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]
  
 

Tennessee Raises Amount Allowed For “Small Estate” Probate to $50,000.00 From Prior $25,000.00 Maximum

Posted on Jul 6 2014 9:40PM by Attorney, Jason A. Lee

The Tennessee Legislature in the 2014 legislative session passed Public Chapter 829 which raised the amount eligible for the small estate process in Tennessee from $25,000.00 to $50,000.00.  This statute went into effect immediately upon signing on April 29, 2014.  This bill also made other various technical changes to probate law but the most important change for most people was the change to the small estate monetary amount. 

 

As a result, a Tennessee small estate can now be opened under T.C.A. § 30-4-101 et al as long as the estate totals $50,000.00 or less.  The Small Estates Act” of Tennessee was passed in 1972 and has provided a way for individuals to pursue an easier, shorter and more efficient probate estate when the amount of value in the estate is minimal.  Prior to this new statute small estates could only be opened up when the value of the property of decedent did not exceed $25,000.00.  I still recommend that you have an attorney involved to assist you with the small estate process although the attorney fees for a small estate should be much less than for a full probate estate in Tennessee. 

 

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

Are Bank Accounts with a “Right of Survivorship”, “Pay on Death” or “Transfer on Death” Designation Part of a Probate Estate in Tennessee?

Posted on Jun 8 2014 9:31PM by Attorney, Jason A. Lee

Bank accounts with a ”right of survivorship”, “pay on death” or “transfer on death” designation are generally not part of your probate estate in Tennessee.  These accounts pass pursuant to the specific contract terms for the account.  This is very important to remember when constructing a comprehensive estate plan.  Sometimes people add one or two of their children to their bank accounts late in life in order to help with paying the bills.  This can have a very significant unintended consequence.  If the children were actually added as joint owners on the account with right of survivorship, then the money in that account will pass directly to them upon death.  It will not pass pursuant to the terms in your will.  This could certainly conflict with your intentions to split things equally among your children.    

As a result, when planning how your assets will be distributed to your heirs or children, it is important to keep this information in mind.  If you desire to have your assets split equally among your children, for instance, then make sure the bank accounts do not unintentionally pass a significant amount of money to one of your children simply because they have been added to the account.  People sometimes have their will drafted correctly where it shows all of their assets should be split equally among their children.  However, they do not take into consideration how their bank accounts are listed or owned.  This can cause an unintentionally uneven distribution of assets after your death (this can also happen with 401k assets and Life Insurance policies).  This is why it is important to have a comprehensive discussion with a Tennessee estate planning attorney about your assets and how you want your assets to be passed to your loved ones upon your death.

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

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

Can a Nonresident of Tennessee Serve as an Executor of a Tennessee Estate?

Posted on Jun 1 2014 7:00PM by Attorney, Jason A. Lee

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

What is the Statute of Limitations for a Tennessee Probate Estate to be Opened to Prosecute a Claim Against the United States Government?

Posted on May 19 2014 9:37PM by Attorney, Jason A. Lee

Tennessee has a specific statute that provides there is no statute of limitations for opening up an estate in Tennessee in order to prosecute a claim against the United States Government.  Specifically, T.C.A. § 30-1-110(3) provides as follows:

 

The time within which administration may be granted shall be as follows:

(3) Prosecuting Claims against Government. A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time.

 

As a result, if an estate needs to be opened in Tennessee for the purpose of prosecuting a claim against the United States Government, this can be done at any time after the decedent’s death.  Obviously, there may still be an underlying statute of limitations for the claim against the United States Government, but there is no limitation of time for the actual opening of the estate under Tennessee law.  An example of a claim that has been brought against the United States Government to which this statute would apply would be the “Black Farmers Discrimination Litigation”.  In order to get a paid out settlement in the Black Farmers Discrimination Litigation case in Tennessee (or elsewhere) for a deceased person, an estate must be opened up in Tennessee.

 

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

In Tennessee can a Will Submitted to Probate in Solemn Form be Challenged by a Later Filed Will Contest?

Posted on Apr 20 2014 10:12PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals decision of In re: Estate of John Leonard Burke, No. M2012-01735-COA-R3-CV, 2013 WL 2258045 (Tenn. Ct. App. 2013) dealt with a situation where a will was submitted to probate in solemn form on December 19, 2011.  The trial court noted at that time that all potential beneficiaries had been served with notice of the hearing and that no objection was filed to the probate of the will.  On June 8, 2012, the deceased’s stepson filed a challenge to the will alleging that the will was “procured by the fraudulent inducement” of the deceased’s wife.  As a result, the question was whether this challenge, instituted approximately six months after the will was probated in solemn form, could be brought at that point. 

 

The Tennessee Court of Appeals ultimately held that when a will is submitted in solemn form under T.C.A. § 30-1-117(b) “a will contest must be initiated, if at all, prior to the entry of the final order admitting the will to probate in solemn form, not prior to the final order closing the estate.” Burke at 5.  Due to the fact the stepson in this case did not challenge the will until after the entry of the order entering the will in solemn form, the will contest was dismissed as untimely. 

 

Submitting a will in “solemn form” can be beneficial in certain circumstances although it is not necessarily justified in every case.  It can be beneficial if there is concern that one of the beneficiaries may want to contest the will at some point.  This can be a good strategy to force them to act rather quickly on the front end or forever lose the opportunity to contest the will. 

 

On the other side of things, if a party...

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TAGS: Solemn Form Probate, Probate Process, Wills, Will Contest, Tennessee Probate Law Comments [0]
  
 

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, 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]
  
 
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