Beneficiary’s Use of Estate Property Prior to Distribution

The Tennessee Code has a statute for that. Tennessee Code Section 35-15-110 contains a laundry list of powers that an executor possesses by default unless the will says otherwise. Among them is the following: … to permit any beneficiary or beneficiaries of the will to have the use, possession and enjoyment, without charge made for the use, possession and enjoyment, (and without the fiduciary thereby relinquishing control of the property), of any real property or tangible personal property of the estate which, upon completion of the administration of the estate, will be distributable to that beneficiary or beneficiaries… The executor may exercise this authority only to the extent that: The action will not adversely affect the rights and interests of […]

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When Your Executor/Trustee is Sentenced to Prison

What happens? Tennessee has a statute for that: The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the inmate to execute the office of executor, administrator or guardian, fiduciary or conservator, and operates as a removal from office. UPDATED TO ADD: The significance of this statute may not be immediately obvious. It creates a “particular civil disability that occurs upon the conviction and remains in effect throughout the defendant’s life unless restored by a specific statutory procedure.” State v. Johnson, 279 S.W.3d 522 (Tenn. 2002). Accordingly, the statute generally prohibits a person who has served time in prison from ever serving as an executor, administrator, guardian, conservator, or other fiduciary […]

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Anti-Lapse and Trust Termination

Does Tennessee’s anti-lapse statute apply when the remainder beneficiary of a trust dies before the trust terminates? No.

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Are Capital Gains Subject to the 65-Day Rule?

No, but you would not know that from reading the statute. 

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Marriage + Birth = Revocation of Will?

Tennessee has a statute for that.

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Effect of Last Will’s Revocation on Earlier Will

Under Tennessee law, does revocation of a last will and testament automatically reinstate the immediately preceding last will?

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Contract Wills

Is a contract to make a will enforceable under Tennessee law?

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Selecting Your Executor

When a family member dies, the person selected as the executor of the estate is often one of the largest causes of family discord.

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Handwritten Modifications to Revocable Trust Deemed Invalid

In a recent case, the Tennessee Court of Appeals found that a settlor failed in her do-it-yourself approach to estate planning.

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Odd Probate Case Poses Question No One is Asking

Specifically, whether Tennessee’s probate claim statute requires a creditor to provide the executor with proof of a claim before the executor must mail the creditor a copy of the published Notice to Creditors.

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Life Insurance Proceeds and Creditor Claims

Are life insurance proceeds subject to the claims of the decedent’s creditors under Tennessee law? Consider two scenarios.

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Getting the Decedent’s Final Paycheck Without Opening Probate

Tennessee has a statute for it:

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Considering Serving as Executor of an Estate Subject to a Tax Lien?

A recent case from the Southern District of Indiana might make you think twice.

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Contracts to Recover Unclaimed Property

Fee agreements with third parties for the recovery of property held by the Tennessee Division of Unclaimed Property are not uncommon. Such arrangements are now governed by statute:

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When Unclaimed Property is Presumed Abandoned

The following table summarizes when unclaimed property is presumed abandoned for purposes of the Tennessee Uniform Unclaimed Property Act:

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Year’s Support and Death of Surviving Spouse

As noted in the previous post, the death of the surviving spouse prior to filing for an elective share does not necessarily mean that she forfeits the right. But what about a year’s support?  Is it also available if the surviving spouse dies before filing?

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Elective Share and Death of Surviving Spouse

If the surviving spouse dies before filing for an elective share, does her right to dissent die with her?

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Anti-Lapse Statute Trumps Testator’s Intent

A recent Tennessee court of appeals case is a reminder that there are limits to how far the law on testator’s intent will take you.

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“Property” Under the New Unclaimed Property Act

What constitutes “property” for purposes of the Revised Uniform Unclaimed Property Act?

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Tennessee Enacts New Rules on Unclaimed Property

Tennessee has adopted the Revised Uniform Unclaimed Property Act (RUUPA). It became effective on July 1, and is codified at T.C.A. § 66-29-101, et seq. It replaces the Uniform Disposition of Unclaimed (Personal) Property Act.

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Tennessee Quietly Makes More Probate Changes

While much attention has been given to the 2017 Probate Omnibus Bill (SB0769, now codified as Public Chapter 290), a little-known bill that also became effective on July 1 makes several important probate changes that should not be overlooked.

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Concealing or Destroying a Will

It’s a crime under Tennessee law: 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. A Class E felony is punishable by not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute. Relying on an earlier version of this statute, the Tennessee Court of Appeals has indicated that a person in possession of a will has a duty to bring it forward, absent knowledge of any defect in its execution. Sources: T.C.A. […]

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Sales of Personal Property by Executors

How much leeway does an executor have when it comes to selling the personal property of an estate?

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Reasonable Compensation of Executors

Serving as an executor is not an honor, it is work. As such, the person serving in this position will often want to be compensated for his, her, or its time. A common question is: how much is appropriate? The Tennessee Code simply provides that an executor is entitled to “reasonable compensation.” To wit: The clerk shall charge every accounting party with all sums of money the accounting party has received, or might have received by using due and reasonable diligence, and shall credit the accounting party with a reasonable compensation for services, and with disbursements supported by lawful vouchers. Elsewhere, in the statute dealing with priority of estate claims, it says as follows: (a) All claims or demands against […]

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Percentage Fees in Probate Matters

Is it unlawful or unethical for an estate attorney to charge a fee based on a percentage of the estate? That was one issue raised in In re Estate of Bessie Adcock Bingham. In that case, the executor entered into a contract with an estate attorney, whereby the attorney agreed to represent the estate for a fee of 5% of the gross estate as determined by the Tennessee Department of Revenue Inheritance Tax Return. Evidently, this is a common practice in Bedford County. According to the trial court, [T]he cultural history of fees within our judicial district has long been… they were charged as percentages.” One of the beneficiaries objected, arguing that that charging a fee based on a percentage formula in a probate […]

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