Tennessee Estate Law Blog

Recently, Tennessee  Attorney, Jim Higgins, was interviewed about some common myths that exist about Wills and Estates in Tennessee.  You can watch the interview below:

While there are a number of myths associated with Tennessee wills, our goal is to dispel some of the commonly heard misconceptions by establishing the facts.  Many people may have heard otherwise, but not every will must be filed with the probate court once a person dies. Although sometimes undeservingly, probate courts have long been associated with a lengthy and arduous process that determines how assets will be distributed in certain circumstances. Wills have to be filed with the probate court only if there is a need to open some type of probate administration.

There are a number of prevalent myths that many Tennesseans may have heard when discussing wills in Tennessee. While there may be a bit of truth in every myth, it is important to distinguish the facts from fiction about wills in Tennessee. One of the more common myths that many people ask about is whether the State of Tennessee will take everything from the deceased if he or she dies without a will. This circumstance is very unlikely to occur and only happens in very limited circumstances.

When an individual dies without a will, it is commonly known as dying intestate. “Intestacy” is really just a fancy way of describing how the assets of the decedent should be distributed according to the laws within the state. Similarly, a decedent is another way of describing the deceased individual with intestacy.

Tennessee has specific state statutes describing how assets of the decedent should pass to family members under intestacy. Tennessee Code Annotated Section 31-2-104 describes the process for determining where the assets of the deceased are to be distributed.  Depending on the number of heirs, the statute determines the amount in which each individual receives a share of the assets. The distribution starts with the immediate family and only moves beyond the immediate family if there are no remaining members of the immediate family.

Under intestacy, if the decedent has a surviving spouse and no living children, the surviving spouse will receive the decedent’s entire estate. If the decedent has surviving children but no surviving spouse, the surviving children will receive the entire share of the estate. If there are both a surviving spouse and surviving children, the surviving spouse will receive either one-third (1/3) of the entire estate or a child’s share of the entire estate, whichever one is greater. If there are no surviving spouse or surviving children, the estate passes to the decedent’s surviving parents. The distribution continues further down the line of surviving family members depending on who is a surviving heir at law. Only when there are no surviving heirs-at-law would the estate ever pass to the State of Tennessee.

While Tennessee intestacy laws provide a mechanism for passing property upon death, it obviously may not provide the best allocation of the estate for your loved one’s needs. Tennessee wills provide you with the choice of how your estate should be distributed.  Unfortunately, it is just one of those things that we all tend to “put off until later”.  Considering all that we do to protect our family it is strange how so many people fail to do something that is so simple and relatively inexpensive.

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You may have heard of a conservatorship, but you may not know exactly what it entails. A conservatorship is court process intended to protect a disabled or incapacitated adult and his or her property by allocating decision-making responsibilities to another person. The person given this decision-making responsibility is known as a conservator. Conservatorships are most often used for aging relatives. However, a conservatorship can also be suitable for those temporarily disabled from an illness or an accident, as well as those emotionally, physically, or mentally unable to care for themselves. There is a certain process that courts go through to appoint a conservator.

How is the conservator appointed?

The first step that must be taken in appointing a conservator is filing a petition for the protection of an incapacitated or disabled person. In Tennessee, this petition is typically filed in the probate court. The court must establish two things before establishing a conservatorship: 1) the individual is a “disabled person”; and 2) the appointment of a conservator is the “least restrictive alternative” to protect the disabled person for health or financial reasons. Tennessee law defines a “disabled person” as an adult who is “in need of full or partial supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability or other mental or physical incapacity.” The individual petitioning for the conservator appointment must file a physician’s report identifying the need for a conservator for the welfare of the disabled individual.

Guardian ad litem begins investigation

Upon the filing of a petition for conservatorship, the court appoints a separate attorney known as a guardian ad litem to investigate the facts of the case acting as a third party. The guardian ad litem examines medical and financial records as well as conducts interviews with the individuals involved. Upon the conclusion of the investigation but before the hearing, the guardian ad litem submits a report to the court with a recommendation either approving or denying the conservatorship. The guardian ad litem may also recommend the most appropriate person to act as conservator and/or place any limitations on the authority of the conservator.

Court hearing and appointment

At the hearing, the court hears the evidence and determines whether the alleged disabled individual actually needs the protection of the petitioner. The judge can hear the testimony of witnesses both for and against the appointment. In addition, the judge will use the report from the guardian ad litem and the report from the physician as evidence to make a decision. Upon weighing all of the relevant evidence, the judge will make the decision whether to declare that the individual is disabled and needs a conservator or not. The judge may determine that the petitioner is indeed fit to be the conservator, or the judge could determine that someone other than the petitioner should serve as conservator. In addition, the judge could limit the authority of the conservator if he or she sees fit.

Conservator’s property management plan

If the disabled individual has property that needs managing, the court would require that the conservator take a detailed inventory and submit what is known as a property management plan. The court requires approval of this plan before the conservator is able to manage the property. In addition, the court requires that the conservator maintain good records of any receipts and disbursements.

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