Probate Guide - Tennessee Administrative Office Of The Courts

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ProbateGuideA guide for clerksserving courts withprobate jurisdictionSeptember 2012

TABLE OF CONTENTSPREFACE . 0CHAPTER ONEINTRODUCTION. 1The Probate Court . 1Overview of the Testate and Intestate Estate . 2Sample Guidelines for Initiating An Estate . 2CHAPTER TWOADMISSION OF WILL TO PROBATE . 4Time Limitations on Probate . 4Who Presents the Will or Wills . 5Renunciation by Devisee . 5Common Form Probate . 5Solemn Form Probate . 5Notice and Its Effect . 5Time of Notice . 6Other Considerations . 6Sufficiency of the Will . 7Common Form. 7Solemn Form . 8Affidavits . 8Secondary Proof . 9Out-of-State Execution of Will . 9Construction of Will . 9Contents of Petition . 10CHAPTER THREEWILL CONTEST. 11Jurisdiction . 11Certificate of Contest . 11Bond . 11Contest Before Probate in Common form . 11Proceeding to Set Aside in Common form . 12CHAPTER FOURLETTERS AND BOND . 13Letters Testamentary . 13Letters of Administration . 13Letters of Administration C.T.A. 13Appointing Administrator Pendente Lite . 13Administrator Ad Litem . 13

Jurisdiction . 13Application of Letters . 13Oath . 13Preference for Appointment in an Intestate Estate. 13Bond . 14Waiver of Bond . 14Bond Requirement . 14Creditor to Qualify . 14CHAPTER FIVEELECTIVE SHARE AND ALLOWANCES. 15Allowances To Family . 15Specific Exemptions . 15Year’s Support. 16Wages. 16Sums Due Decedent of Less Than 10,000.00 after Six Months . 17Insurance . 17Income Tax Refund Up to 500.00 . 18Soil Conservation Payment . 18Homestead . 18Procedure To Set Aside Homestead . 19Valuation For Inheritance Tax . 20Election By Spouse Against Decedent’s Will . 20Procedure . 21Time Extension Due To Litigation . 21Mental Incompetency or Minority of Surviving Spouse. 21Death of Surviving Spouse Within Dissent Time . 22Effect of Divorce, Annulment, and Decree of Separation . 22CHAPTER SIXINTESTACY . 23General Rules of Descent . 23Share of the Surviving Spouse. 23Share of Heirs Other Than Surviving Spouse . 23Effect of Divorce, Annulment, and Decree of Separation . 24The Parent - Child Relationship . 24Afterborn Heirs . 25Renunciation or Disclaimer of Succession . 25Person Feloniously Killing Another Forfeits All RightsIn and To Deceased Property . 27Escheats . 27Reports Concerning Property Which May be Subject to Escheat . 28

Advancements . 28CHAPTER SEVENINVENTORY OF ESTATE . 29Making Inventory-Return Notice to Beneficiaries . 29Recording of Inventory . 29Character of Inventory . 30CHAPTER EIGHTINSOLVENT ESTATES . 31Initiation of Administration . 31Notice of Insolvency – Filing Copies . 31Notice of Insolvency – Contents – Effect of No Objection . 31Hearing on Objections to Plan-Notice . 31Clerk’s Report- Exceptions . 32CHAPTER NINEDEATH TAXES . 33Notice to Commissioner . 33Inventory of Safe Deposit Box . 34Federal Estate Tax . 35Estimating the Tax for Bond Purposes . 35CHAPTER TENCLAIMS . 36Notice to Creditors . 36Duty of Personal Representative to Notify Creditors . 36Affidavit of Publication or Posting of Newspaper . 36Time Limitation on Filing Claims. 37Claim Requirements . 37Entry of Claim by Clerk . 38Clerk’s Notice to Personal Representative. 39Exceptions to Claim . 39Trial of Disputed Claims – Jury Demanded . 39Trial of Disputed Claims Where No Jury Demanded – Appeals –Independent Suits, Effect . 40Judgment on Claims Where No Exceptions Filed . 41Priority of Claims Against Estate . 41Personal Representative Fees . 43Clerk’s Fees and Court Cost . 43Time for Payment of Claim . 43

CHAPTER ELEVENDISTRIBUTION . 44Time for Payment of Claim . 44Distribution of Balance – Final Settlement . 44Distributees Who Cannot Be Located, Infants, Persons Under Other Disabilities –Procedures for Payment of Shares . 44Shares Placed in State Treasury- Application and Claim for Share . 45Refunding Bonds . 45Recording, Filing, and Verity of Bond . 46Scire Facias Against ObligOr in Refunding Bond . 46Judgment and Execution . 46Receipt Executed for Legacy or Share . 46Application for Distributive Share of Legacy-Jurisdiction . 46Form of Suit - Allegations - Verification of Application. 47Proceedings - Conduct Thereof - Determined Summarily . 47Establishment of Right as Legatee or Distributee . 47CHAPTER TWELVEACCOUNTINGS AND SETTLEMENT . 48Accountings - Statement in Lieu of Accounting . 48Representative’s Duty Before Final Settlement. 49Citation to Appear and Settle . 49Avoidance or Disobedience of Citation . 50Notice of Accounting to Parties Interested . 50Taking the Settlement . 50Balance Upon Settlement . 51Waiver of Notice and Receipt . 51Confirming the Settlement . 51Exceptions to Account - Appeal from Decision of Clerk . 51Appeal from Judgment of Court. 52Sworn Statement by Distributees and Legatees Instead of Detailed Accounting . 52Sample Check-list for Closing Estates . 52CHAPTER THIRTEENSMALL ESTATES . 53Definitions . 53Contents of Affidavit . 54Duties of Clerk . 54Bond Requirements in Small Estates . 55Closing File and Discharge Bond . 55


PREFACEThis 2012 Probate Guide has evolved from the former Probate Manual which was firstpublished in 1975, and was revised in 1977, 1981, 1991, 2007 and again in 2012. The 2012revision was offered to the Tennessee court clerks as a guide, including clerks and masters inmost counties, whose court had probate jurisdiction. We have attempted to update this guide toreflect the most current changes in the probate code section. However, this guide is not adefinitive study of the law of decedent’s estates. References to Tennessee Code Annotatedsection numbers are placed in appropriate places (in parentheses) throughout this guide to aid theuser in finding relevant code sections. Case law is sometimes cited, but no attempt was made toprovide detailed case law analysis. Further, the user of this guide should remember that statutorylaw and case law in this area is constantly evolving, so statements made in this guide must beverified before being relied upon, particularly in the years after 2012 until the current date.The basic format of this guide is to explain the life cycle of an administration of adecedent’s estate, whether testate or intestate. Although much of probate procedure is informal,it often involves a specialized vocabulary. For this reason, a glossary of terms often used inprobate proceedings is included. Also attached to this guide are examples of various forms usedin the probate court.The 2012 Probate Guide is provided by the Probate Committee of the Tennessee Clerks of CourtConference.Committee Members:Ted Crozier-ChairRebecca N. BartlettKenneth ToddElaine BeelerMerry B. SigmonKathy Jones TerryJohn BratcherTim BurrusKenneth HudgensSherrie PippinJudy TrentJane Link

CHAPTER ONEINTRODUCTIONThe Probate CourtThe jurisdiction over the probate of wills and administration of estates is now vested inthe chancery court unless a particular county has a special court for probate created by privateact. See T.C.A. 16-16-201. Probate jurisdiction has been vested in General Sessions Court inseveral counties by private act. Under this law, where the chancery court exercises primaryjurisdiction of probate matters, the clerk and master may perform many of the functions formerlyreserved to the county judge, subject to the review and approval of the chancellor, as well asthose duties formerly performed by the county clerk when acting as clerk of the probate court fora county judge or probate judge. Therefore, when the term “clerk” is used hereafter, it shall referto the county clerk, clerk and master, probate clerk or any clerk exercising probate jurisdiction.However, because of the additional duties placed on the clerk and master when the chancerycourt exercises probate jurisdiction, specific reference to the clerk and master will often benecessary. Similarly, the term “judge” shall refer to judges having probate jurisdiction. Theterm “court” shall refer to the court exercising probate jurisdiction.As noted earlier, the clerk and master may perform some duties for the chancellor thatother clerks could not perform for the county judge. Where the chancery court has probatejurisdiction, the clerk and master may “grant letters of administration and letters testamentary . ., appoint administrators and executors . . ., receive and adjudicate all claims, probate wills incommon form, determine allowances to the surviving spouse and family of the deceased, presideover the assignment of homestead, take and state all accounts and settlements, subject to theapproval of the chancellor, direct and approve final distributions, and hear and determine allprobate matters whether herein enumerated or not.” (T.C.A. 16-16-201)The court exercising probate jurisdiction of the county in which the decedent usuallyresided (was domiciled) at the time of his or her death has jurisdiction over the estate. However,if the deceased had fixed residences in more than one county in Tennessee, then either county’scourt exercising probate jurisdiction has jurisdiction. (T.C.A. 30-1-102) Also, if the decedentowned real estate situated in another state, then that state will have ancillary jurisdiction toadminister that state’s real estate. A finding of domicile by the probate court of one state is notbinding upon the courts of another state, and each court finding domicile in that court’s state mayadminister the real and personal property within its own state.Letters testamentary or of administration may be granted upon the estate of a person whoresided, at the time of his death, in some other state or territory of the union, or in a foreigncountry, by the probate court of any county in this state:1. Where the deceased had any goods, chattels, or assets, or any estate, real or personal,at the time of his death, or where the same may be at the time when said letters are1

applied for;2. Where any debtor of the deceased resides;3. Where any debtor of a debtor of the deceased resides, his debt being unpaid when theapplication is made;4. Where any suit is to be brought, prosecuted, or defended, in which said estate isinterested. (T.C.A. 30-1-103)Overview of the Testate and Intestate EstateUpon the death of a person, the real and personal property of the decedent must bedistributed according to law. This law is basically the Tennessee statutory law found inTennessee Code Annotated. When a person has made a valid will before death, then thatperson is said to have died testate or with a will. When a person dies without havingmade a valid will, then that person is said to have died intestate or without a will.Sometimes a person dies leaving a will that does not deal with all of the decedent’sproperty. In this case, the person dies intestate in regard to the property not passing bywill. This guide will first deal with the situation involving decedents that have left a will,but will also review the procedure involved in intestacy. In many aspects, theadministration is similar.Certainly, many advantages are secured through probate administration, such as clearvesting of legal title where real estate is devised by will. Some estates where the value ofproperty in the estate is under 25,000.00 may be administered in a shortened manner under theSmall Estates Act. (T.C.A. 30-4-101 et seq.) Administration is always necessary if one or moreof the heirs is a minor, or if some of the heirs demand administration, or if there is a disputeamong the heirs.Sample Guidelines for an Estate:1. Determine if the decedent left a will and if so, the original will be needed for probate.2. Determine if the will is self proving or authenticating, which means it has an affidavitattached to the will that was executed at the same time the will was executed. If the willis not self proving, it will need to be proven by affidavit or testimony of one witness.3. To open a probate in:a. Common form, you will need a petition that contains all the information outlinedin TCA 30-1-117, an order of probate, and the original will.b. Solemn form, you will need a petition that contains all the information outlined inTCA 30-1-117, and a summons/notice that will need to be served on allbeneficiaries and/or heirs at law. The Clerk should file and issue the documentsand set this for a court hearing. Following the hearing an order should be entereddetailing the outcome of the hearing for probate in solemn form.4. The clerk is required to send a notice to the Commissioner of Revenue, issue Letters ofTestamentary with a will and Letters of Administration without a will. (If a request is2

made to probate a will contrary to the specific directions in the will, the Clerk shouldissue Letters of Administration CTA, or with the will annexed, and Notice to Creditors.The clerk should collect the filing fee at the initiation of the estate. If bond is required, itshould be received prior to the issuance of Letters.5. File all documents relative to that estate until closure is ready. The clerk may request anaffidavit from the representative or the attorney representing the estate, stating that actualnotice to creditors has been given to all known creditors and the date received by suchcreditor, so that the clerk will know when an estate can be closed.6. Closing documents required are:a. receipt/certificate from the Department of Revenue;b. release from the Bureau of TennCare on deceased individuals over the age of 55;c. a sworn statement that actual notice to creditors has been given by the personalrepresentative to all known creditors;d. proof

This 2012 Probate Guide has evolved from the former Probate Manual which was first published in 1975, and was revised in 1977, 1981, 1991, 2007 and again in 2012. The 2012 revision was offered to the Tennessee court clerks as a guide, including clerks and masters in most counties, whose court had probate jurisdiction.

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