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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Children Born after the Will is Executed

A good Last Will and Testament will address the issue of children born after the document is executed. Nonetheless, the Tennessee Code has the situation covered: A child born after the making of a will, either before or after the death of the testator, inclusive of a mother-testator, not provided for nor disinherited, but only pretermitted, in the will, and not provided for by settlement made by the testator in the testator’s lifetime, shall succeed to the same portion of the testator’s estate as if the testator had died intestate. The statute goes on to say that a pretermitted child’s share is to be funded pro rata out of the shares of the other beneficiaries.  Note that the quoted statute only […]

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If You Want an Estate Tax Closing Letter, You Now Have to Ask for It

For estates that are required to file a Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return*, it is advisable not to close the estate until you know that the IRS has completed its examination of the return and has accepted it (either with or without adjustment). Until relatively recently, the IRS would notify you that the return had been accepted by sending an estate tax closing letter. However, that is no longer the case. For estate tax returns filed after June 1, 2015, the IRS will only issue estate tax closing letters upon request. Specifically, the executor must call the IRS at (866) 699-4083 and provide the following information: Name of the decedent; Decedent’s social security number; Date of death. […]

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Governor Signs SB0769

Today Governor Haslam signed SB0769, a bill that revises various provisions of the Tennessee Code relating to wills, trusts, and probate. The substantive provisions of the bill take effect July 1. Analysis of the bill may be found at the following links: 2017 Probate Omnibus Bill 2017 Probate Omnibus Bill: What’s Missing? Trust Funding & the Probate Omnibus Bill Memorandums of Personal Effects after SB0769 Tennessee’s Revised Slayer Statute Source: Tennessee Legislature Website Posted by Joel D. Roettger, JD, LLM, EPLS

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Tennessee’s Revised Slayer Statute

The new version of Tennessee’s Slayer Statute is much like the old version, only with 10 times more verbiage. Tennessee’s Slayer Statute is based on a simple principle: a killer cannot profit from the killer’s wrong. Thus, a killer forfeits the right to receive property from his victim by way of inheritance or otherwise.  The current version of the Slayer Statute expresses this idea relatively succinctly. In one paragraph and 122 words, it states: Any person who kills, or conspires with another to kill, or procures to be killed, any other person from whom the first named person would inherit the property, either real or personal, or any part of the property, belonging to the deceased person at the time of the […]

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Memorandums of Personal Effects after SB0769

A new statute taking effect on July 1 will finally cause memorandums of personal effects to be legally recognized, but the statute is not without drawbacks. A memorandum of personal effects is separate from, but related to, a client’s last will and testament. It allows the client to dispose of tangible personal property at death, but in a less formal manner. The client simply makes a list of items and the persons who should receive them. Because the list is not a part of the will, it does not need to be executed with the formalities of a will. Therefore the client can update the list as often as he wants without having to consult his attorney or execute a […]

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2017 Probate Omnibus Bill: What’s Missing?

The 2017 probate omnibus bill is notable not just for what it contains, but also for what it does not contain. The original version of the bill was HB 0567. It contained several sections that addressed the effect of divorce or annulment on an estate plan. Under current law, divorce/annulment, by itself and without any further action of the testator revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Similarly, a decree of annulment, divorce, dissolution of marriage, or legal separation revokes […]

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