Is a Resident Executor/Trustee Required Under Tennessee Law?

At first glance, the answer might appear to be yes:

Any person who is not a resident of this state or any corporation that is authorized to exercise fiduciary powers, but is not authorized to do business in this state and does not actually maintain an office in this state, shall not be appointed or allowed to serve as trustee of a corporate or personal trust, personal representative of an estate, guardian, conservator for an incompetent person, guardian for a minor or in any other fiduciary capacity, unless there is also appointed as a fiduciary to serve with such nonresident fiduciary, a person resident in this state or corporation authorized to do business in this state and that maintains an office in this state, except as provided in subdivision (a)(2). In the event the resident cofiduciary ceases for any reason to act, then a new resident cofiduciary shall be appointed.

But then you get to the exceptions:

  • Any resident or nonresident person may serve as a personal representative [executor] of the estate of a decedent
  • Any corporation that is authorized to exercise fiduciary powers may serve as trustee of an inter vivos personal or corporate trust, regardless of the residence of the trustee
  • Any person may serve as trustee of a trust, regardless of the residence of the trustee
  • Any person may serve as the guardian of the person of a minor, regardless of the residence of the guardian
  • Any person may serve as the conservator of the person of an incompetent person, regardless of the residence of the conservator
  • Any person or corporation authorized to exercise fiduciary powers may serve as agent or attorney-in-fact under a power of attorney, regardless of the residence of the agent or attorney-in-fact
  • A bank or trust company chartered under the laws of another state may serve as fiduciary provided that the other state provides reciprocal rights to Tennessee-chartered bank and trust companies.

The exceptions swallow up the general rule. Thus, just about anyone can serve as executor–not to mention trustee, guardian, conservator, and agent under power of attorney–regardless of residence.

Note that, prior to serving as fiduciary, a non-resident must appoint the Tennessee Secretary of State as its agent for purposes of service of process. The application form can be found here (pdf).

Source: T.C.A. § 35-50-107

Posted by Joel D. Roettger, JD, LLM, EPLS

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