Tennessee Estate Law Blog

November 27, 2013

The Higgins Firm Wishes You a Happy Thanksgiving

This time of year is a chance for families to enjoy one another’s company and simply be thankful for one another. It is a time for food, fun, family, and maybe even a little football.

Whether you are planning on having a large family gathering or smaller get-together with friends, this is a great opportunity to talk with your loved ones about your potential estate planning. Talk with your loved ones about what would work best for you and your family. A conversation can be a great way to start thinking about your family’s estate planning.

Whether you need a will, a power of attorney, or a living will, a conversation with your loved ones can help you recognize what legal documents may need to help provide for your family in the event that you are no longer able to do so. Following your conversation, you can begin to think about addressing specific cares or concerns that your family may have. You can then take these concerns to your estate planning attorney to begin the process of developing or amending your estate plan.

November 19, 2013

Nashville Attorney Admits to Stealing $1.3 Million from Wards

by Ryan Simmons

A Nashville attorney recently admitted to stealing nearly $1.3 million from three of his wards after being appointed conservator by the court to oversee their finances. John E. Clemmons, 66 years old, ended up spending much of that money on several gambling sprees at casinos spread across five different states.

Last Friday, Clemmons appeared in court before Judge Steve Dozier taking a plea deal that resulted in a combined sentence of 18 years on three counts of theft in addition to TennCare fraud and perjury. Clemmons had faced at least a 30 year sentence on the theft charges alone before the plea deal. Clemmons could be eligible for parole after serving approximately six years.

One of Clemmons’ victims had been the now deceased father of a disabled woman. Much of the missing money was to be placed into a special account for her care. Additionally, Clemmons had already pled guilty to stealing $60,000 from a fourth ward in Rutherford County.

November 12, 2013

Paralyzed Hunter Opts to End Life Support

by Ryan Simmons

An Indiana man chose to withdraw his own life support following a hunting accident that left him paralyzed and unable to breathe on his own. 32 year old Tim Bowers had been out deer hunting when he fell 16 feet from his tree stand crushing his C3, C4, and C5 vertebrae. As a result of the injury, Bowers was paralyzed from the shoulders down and required a ventilator to breathe. Doctors had determined that Bowers would likely not be able to breathe on his own ever again.

While still sedated, the family asked doctors if Bowers could be brought out of sedation to determine what he wanted to do. The family wanted Bowers to make his own decision regarding his life. The doctors complied and brought Bowers out of sedation. The family then explained the prognosis and asked Bowers whether he would want to continue the life support. With the ventilator tube still in place and unable to speak, Bowers shook his head emphatically no. The family then asked Bowers if he would want the tube reinserted if he struggled, and Bowers again shook his head no. Subsequently, the doctors came in and asked the same questions. Bowers gave the same responses. Doctors then removed the ventilator tube.

Bowers was able to spend the last several hours of his life surrounded by friends and family. During that time Bowers never wavered in his decision to die. The family felt comfortable knowing that he had made his own decision rather than attempting to make a decision for him.

November 5, 2013

New Conservatorship Oversight Recommended

by Ryan Simmons

A task force assigned to look into the increasing number of conservatorships in Davidson County has determined that there is not enough oversight and has recommended the establishment of a new office, known as the Office of the Public Guardian, to oversee such. There have been several instances which have prompted the need into further oversight of conservatorships in Davidson County. In addition, there are an increasing number of indigent individuals who need assistance from such an office because they may not have friends or family who are capable of serving as a conservator.

The proposed Office of the Public Guardian would replace the one person position of public guardian which is currently vacant following the resignation of Jeanan Mills Stuart. Stuart had acted as public guardian, a public position which acts as a conservator to indigent individuals. Stuart’s resignation came in the wake of an investigation into the fees that she was charging to perform a number of tasks. Stuart had charged her wards the full hourly attorney’s fee of between $200 and $225 to perform any task including running their errands. Some of the tasks included taking wards shopping, running errands, and attending events.

In 2009, Davidson County had 636 conservatorships. That number jumped to 1,782 conservatorships in 2012. With the highest numbers in the state, there are a number of reasons as to why Davidson County has such a high case load including a high number of nursing homes, hospitals, veterans facilities and the large population of homeless. With an increasing amount of conservatorships, it has become much harder to oversee. That number is only expected to grow as the baby boomer generation ages and life expectancies become longer due to medical advances.

October 29, 2013

Unsigned Will Leads to Lawsuit against Father’s Company

by Ryan Simmons

The sons of a late North Carolina real estate developer are suing their father’s company in an attempt to recover nearly $200 million in assets that he was trying to redirect shortly before his death. Henry Faison had tried updating his will to leave a large portion of his estate to a charitable trust that was named after his dog as opposed to his real estate firm. However, Faison was unable to officially sign the legal document before suddenly passing away. Subsequently, evidence in the form of emails and memos has surfaced showing his intention to leave this large portion to a charitable trust rather than the company.

The main issue is obviously that the will was not signed by Faison or witnessed by two witnesses, two requirements to make a valid will. Due to the unusual nature of the case, the suit is largely in uncharted legal waters. There are not any cases that have handled this type of issue or had this type of magnitude.

The lawsuit alleges that both Faison and company officials had agreed to the change of his estate plan prior to his sudden death because the company would be receiving life insurance and a number of other benefits under such agreement. The sons are asserting that the court should make the company uphold its end of the deal.

October 22, 2013

Don’t Hesitate to Plan Your Estate

by Ryan Simmons

Only old, rich people should worry about estate planning. Estate planning is so simple that you can do it yourself. Estate planning is intimidating. There are a number of misconceptions out there about estate planning. While you may have had these thoughts cross your mind in regard to estate planning, it is important to learn the facts about what estate planning is and why you should not wait.

In its most basic form, estate planning is a set of legal documents that instructs others regarding your care and assets if you are not able to speak for yourself. These legal documents may include a will, a living will, appointment of a health care agent, power of attorney, and others. Each of these documents serves a different purpose but they all direct or empower another person to make decisions on your behalf regarding your assets, your care, or even the care of your minor children. In other words, they say who is in charge and this is what I want to happen. While this process may seem scary, estate planning can be quite empowering.

Many people may hear the phrase “estate plan” and automatically think that this only applies to those with money. However, “estate” is just a legal term for anything that you own. Whether you are single, married, divorced, remarried, have siblings, have kids, or anything else you can still benefit from an estate plan. Developing an estate plan can ensure that you are prepared for anything that may come about.

October 15, 2013

Are Family Members Liable for Probate Debts?

by Ryan Simmons

When someone passes away, it obviously can be a very difficult time. You may have so many things to worry about that any task can seem like it requires enormous effort. One of the last things that you want is calls from any debt collectors attempting to collect from your loved one’s estate. Although certain family members may be contacted by debt collectors, typically the family is guarded from any unfair or deceptive practices.

Whenever an estate is opened, the estate is usually responsible for paying any of the debts that the deceased person may have had. The person appointed personal representative acts to handle the affairs of the deceased person. Upon paying all of the debts out of the estate, the remaining assets are then distributed according to the will or according to Tennessee’s intestate statutes if there was not a will. However, if the estate does not have enough funds to pay off the debt, the debts of the deceased could go unpaid. If there was a cosigner or guarantor of the debt, they may be contacted to pay off the debt. In addition, if any debts were jointly held with a spouse, they too may be contacted to pay off the debt. Otherwise, debts may go unpaid leaving debt collectors who may try to recover from whomever.

Debt collectors are allowed to contact only certain people to discuss the debts. Those people may include the personal representative of the estate, the decedent’s spouse, or the decedent’s parents if the decedent was a minor. Debt collectors are not allowed to discuss the debt with anyone else. The only reason debt collectors may contact other family members is to acquire the name of the personal representative or the spouse. However, the collectors may not say anything else to other family members or even state that they are indeed debt collectors. In addition, debt collectors are not allowed to mislead the family into believing that they are responsible for the debts of the deceased. Also, debt collectors are not allowed to use either abusive or offensive language.

October 8, 2013

The Importance of Estate Planning for College-Age Children

by Ryan Simmons

While many people think estate planning only relates to those who are well established in life, estate planning should begin much sooner than most people realize. Estate planning may conjure up images of wills and 401Ks, but the process should be essential to everyone upon reaching the age of majority, typically 18 years old.

Upon reaching the age of 18, most children in some form or fashion begin to assert their independence from their parents whether it is going to college, moving out of the house, or finding a new job. The law acts similarly because in the eyes of the law 18 year olds are adults no matter if they live at home or if they are away at college. This raises a number of implications because parents of these young adults are no longer entitled to make certain medical or legal decisions that they could have made while the child was a minor. If a college age child loses the ability to make or even communicate decisions, doctors and nurses may refuse to release information to you without the proper legal documents. Upon reaching the age of 18, the law recognizes an individual’s right to privacy and to govern their own lives.

Obviously, it is a scary thought to many parents that they may not be able to help their own child in a time of his or her greatest need. However, there are a number of estate planning documents that can enable a parent to make these decisions for their child. Although most 18 year olds likely do not need a will, all should have an Appointment of Health Care Agent or a Durable Power of Attorney for Health Care. Each of these documents allocates authority to another to make health care decisions in the event that an individual is incapacitated and unable to make decisions. While an Appointment of a Health Care agent appoints another to make decisions in the event of incapacitation, a Durable Power of Attorney for Health Care lists the individual’s preference for treatment and appoints another individual to make those decisions accordingly in the event of incapacitation.

October 1, 2013

Avoiding Probate: Small Estate Administration

by Ryan Simmons

Whether deserving or not, probate is often a scary thought to many people. Probate is the court process that distributes certain assets to heirs and any creditors upon the death of an individual. Often the probate process can drag out for a long time causing increasing headaches and expenses. As a result people try to avoid the probate process as much as possible. Tennessee provides an option to avoid probate for those who may have estates of more modest size.

Tennessee’s small estate option makes it both simpler and less expensive for heirs to obtain the assets of the deceased individual without having to go through the probate process. The small estate law applies whether the deceased individual had a will or not. However, there are certain conditions that must be met for the small estate law to apply.

You may be wondering exactly what an “estate” is. An estate means the belongings or assets of the deceased person. Tennessee’s small estate law requires the value of the deceased’s personal property must be $25,000 or under in order to utilize a small estate administration. The personal property includes any type of belongings other than real estate or land. Personal property can also include any insurance that is payable to the estate.

September 24, 2013

Simple Titling Errors Can Lead to Estate Planning Headaches

by Ryan Simmons

We all have heard about the importance of creating an estate plan for the benefit of our loved ones. In creating an estate plan, many people believe that their will is the final say on who gets what accounts after they die. While a will often is the final determination of who receives which assets, simple titling errors can create big headaches for all of those involved. The beneficiaries named on certain assets make the actual determination of where an asset may go even if a will states otherwise.

An estate plan can be frustrated by the way that a person titles individuals as beneficiaries of assets like bank or brokerage accounts. For instance, a mother may wish to have her estate divided equally among her three children upon her passing. However, if the mother names only one child as beneficiary of a savings account, only that child will receive the contents of that account because they were listed as the sole beneficiary. Obviously, that child is free to disperse the contents of the account equally to the other two children. However, the recipient of the asset is not under any legal obligation to do so. This situation can often lead to family problems.

Many people do not understand the implications and importance of titling on their accounts. When reviewing your estate plan, it is important to review who you have listed as a beneficiary on your accounts. Make sure that your wishes are expressed accordingly. In addition, it is also important to update your estate plan following any major life changes. If something has happened to a named beneficiary, be sure to update those accounts so that your wishes are met.