Tennessee Probate Legal Questions

As a general rule, if you have a fund and have designated a beneficiary of that fund, then that will take priority over a different designation in a will unless the person designated in the fund is deceased, then the will governs. In some cases this might be different if you can show "undue influence" in picking the beneficiary of the fund.... Read More

This question took a little time to find the answer because I have not had this issue since law school. The answer to your question is no, you will not get his inheritance. Normally, when the beneficiary under a will dies before the testator (the person creating the will), then the legacy (property to be inherited) is said to have "lapsed". This is called a "lapsed legacy". Tennessee has a statute called a "anti-lapsed legacy" Tenn. Code Ann. § 32-3-105 which states that "whenever the devisee or legatee or any member of a class to which an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue that survives the testator, the issue (children) shall take the estate or interest devised or bequeathed that the devisee or legatee or the member of the class, as the case may be, would have taken, had that person survived the testator, unless a different disposition thereof is made or required by the will.' What this means is that if your husband had children, then the children would inherit what he would have inherited. However, you do not inherit. ... Read More

For a will/codicil to be valid, the person who executed the will/codicil must be competent at the time of the execution. I am not sure what is meant by the phase "altered mental state" so it is difficult to answer the question based on that phase alone. Another way to challenge a will or codicil is if you prove that the lady used "undue influence" on your brother such that the will/codicil contained her wishes and not his. ... Read More

Every state has a Surrogate Court. If there was a will it had to be brought there to be "probated" and dispose of assets. Since you say there is a trustee, this appointment was established in that court. Your girlfriend, as a beneficary of that trust can bring an action in that court for an "accounting" of the trust funds.... Read More

No. Heirs do not get anything automatically. If there is property in the name of the decedent alone, someone has to file for probate whether there is a Will or no Will. After that, an executor or personal representative will be court-appointed to inventory the estate, pay all outstanding bills and taxes, and distribute whatever is left to the heirs according to the Will and/or the inheritance laws of the state. If there is no property subject to probate, i.e., property owned in the decedent’s name only, it is not necessary to file for probate. The proceeds from things like life insurance, retirement accounts, items in a Trust, property titled as a “joint tenancy with right of survivorship” or the like, must be applied for, claimed, or documentation provided. Nothing causes a state to act automatically or on its own. There is no mechanism to trigger any state activity. An heir, fiduciary (agent) or some other adult must initiate this action. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com... Read More

Dear Tennessee, As a disclaimer, I practice in Illinois; however, the rules for wills are somewhat universal.    In IL the law regarding the effects of alterations (changes) to wills in summary states that any addition to a will or an alteration, substitution, interlineation or deletion of any part of a will which isn't a revocation of the ENTIRE will is of NO EFFECT, UNLESS it was made by the testator (your mom herein) or by some person in the testator's presence AND by her (your mom herein) direction and consent and unless the will is THEREAFTER SIGNED AND ATTESTED IN THE SAME MANNER REQUIRED TO EXECUTE A WILL.  So UNLESS the changes your mom made were a COMPLETE revocation  of the ENTIRE codicil they are ineffective.  Any partial changes really should have been made as an additional (or new) codicil executed with the same formalities required..witnesses and notarization.    With that said, I advise you to consult with a local attorney to verify that the above is consistent with the laws of Tennessee.  Best wishes to you.... Read More

Where you live isn’t what matters. With or without a Will, if you and your husband don’t make some other estate plan arrangements, he is guaranteeing you’ll find yourself in probate court. Is everything in just your husband’s name? If it is, his estate must go through probate regardless of whether there is a Will or not. If there is a Will, once verified, the judge can order: •        Naming the Executor,•        Legitimate creditors,•        Legitimate heirs (one of whom is the wife),•        Retitling of property,•        Payment of debts, and from what is left over after that•        Disbursement of inheritances, approval or waivers of inventory, accountings, closing, etc. If there is no Will, the law says the estate must go to probate to accomplish all the bullets above, just without the part about validating the Will.  And you get a state mandated Will. The only way the wife inherits the whole estate is if there are no other relatives, like children. Tennessee does have a statute that streamlines probate for a “small estate” (defined as an estate worth less than $25,000). It also has a provision for transferring a single vehicle without going through probate. However you and your husband have options to simplify leaving you his assets including: •        Joint ownership, •        Beneficiary or pay on death status, or •        A variety of Trust tools that can help you avoid probate and maximize tax benefits. He can save you the heartache, and the much larger costs of losing your inheritance to attorney, appraiser and court fees, possible challenges in probate court, taxes, and the drain of time to sort it all out by paying for a solid estate plan with a reliable estate plan and probate attorney. If he won’t do this, your rights will be the right to fight it out in court. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com... Read More

If your mother has died, the person with her Power of Attorney has no authority to do anything at all about anything. A Power of Attorney is only in force for a living person. If your mother is alive, the Power of Attorney gives only the rights the document specifies to the person it names as the “attorney in fact” or “agent”. The power is good as long as your mother is competent, unless it is a Durable Power of Attorney which continues if she becomes incompetent. Even if the Power of Attorney specifies the “agent” has full rights to handle all financial transactions, the agent may not give the money to whomever he or she decides unless the power of attorney specifies this. I have never seen one that does that.  However, a retirement account would be distributed to whomever is named as its beneficiary(ies) and only after your mother is dead. Your mother is the only person who can change her Will. If she is not competent to do so, her estate planning may need to be handled on her behalf by a court appointed guardian or conservator. Whether your mother is living or deceased, hire a an estate lawyer who only practices estate law. You should also consult an estate lawyer about your own estate plan to prevent problems like this for your own heirs. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com... Read More

The tone of your description conveys anger. There are several details you do not explain that would have allowed me to better assess the situation. Get whose money “out” of where? Is the child male or female - you refer to that child as both “his” and “her.” How do you know the child signed away rights to an inheritance? Although you don’t say so, I will assume that the father has died rather than that he just completed his estate plan. In most states, if the Will was filed for probate, the court requires signatures on certain forms in the probate process. These forms are to assure that people were notified of hearings and agree to various procedures. One such is to allow the executor to close the estate without filing a final accounting after all bills are paid and inheritances distributed. It is possible that “the woman” was only discussing one of these. If the father is deceased, and the living child believes he or she was treated unfairly, the child should hire a probate lawyer with experience in estate litigation.   It is quite possible that the man failed to legally disinherit his children and they may still inherit. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com... Read More

It seems clear that you are asking because either you are afraid to deal directly with your daughter and her creditors, or you are worried about having enough money to pay the legal fees involved. The more you delay the more money and time you are wasting. Get a lawyer. You specifically need a probate lawyer to help you through this process. Do not attempt it by yourself. You are allowing your daughter to rip you off. You have several decisions to make and the lawyer can explain your options. For example: 1. With regard to the land that is titled in your husband's and sons names, unless your sons are minor children, it is up to them to handle. It is not your property and not your problem. 2. You might be surprised to know that an option could be to discuss foreclosing on your daughter for the default on her mortgage and teaching her an important life lesson. However, this is not clear to me: Was the debt she has with your husband legally handled so that you have a mortgage to foreclose? 3. Finally, about the car your husband co-signed for your daughter to purchase -- your lawyer can explain whether you have any responsibility, depending on how it is titled. I suspect you are not on the title and if she continues to be in default, very soon the car company or bank will repossess the car and you won't have to worry about it. It will be another hard but important lesson for her to learn. You must decide if you are going to let your daughter continue to take advantage of you. If that is preferable to hiring lawyer to make her pay you back, then you will just be out that money. Only you can decide, but a good Tennessee probate lawyer can help you assert yourself. To Your Success, Gale Allison, Principal Attorney Allison Firm, PLLC http://www.theallisonfirm.com http://www.linkedin.com/in/galeallison.com... Read More

Why are you shopping for an answer? It can only be that you don't have confidence in the 3 lawyers you already consulted. Study the credentials of the next lawyer you consider. My preference is to seek out lawyers that limit their practices to the specific area of the law that you require. So in this case, I would recommend you speak to a lawyer who only practices estate and probate law. If this is all the lawyer does, he or she will know all the processes and will have experience handling a wide variety of quirks. Hire that lawyer and trust him or her to know the right answers. You must get this process started so as not to continue losing value on the property sitting vacant and decaying. Choose an experienced Tennessee probate lawyer and take his or her advice. To Your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com ... Read More

Tell your brother that neither you, nor the judge can change the terms of your father's Will. Explain that your brother's unwillingness to sign his receipt simply makes the process drag out and costs money. If he continues to refuse to sign the receipt, then present the canceled $1000 check to the judge and explain the situation. The judge can then decide what to do. Your brother cannot make anything happen simply because he is unhappy with your father's Will. To your Success, Gale Allison, Principal AttorneyAllison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/galeallison.com ... Read More

Although the language in the Will is less than artful, the actual interpretation of the words depends on the interpretation of the particular judge who gets the lawsuit. You and I can only guess. In my experience, a judge is unlikely to rule that a hospital stay ends the life estate. However, due to the unusual restriction, a judge would most likely take a relatively strict, but not unreasonable view. As for the pets, a judge is likely to use a dictionary definition. Most judges undoubtedly look unfavorably on a person who is trying to press the clumsy wording to some absurd limit, such as complaining about two guppies that unexpectedly procreate. You should not drag this one into court without an obvious breach of the wording, and in any case, choose your lawyer with care!To your success,Gale Allison, Principal AttorneyAllison Firm, PLLCwww.theallisonfirm.comwww.linkedin.com/in/galeallison.com... Read More

I am not familiar with any state in which stepchildren inherit without being named in a Will or Trust as heirs or beneficiaries. The stepchildren may want to hire a Pennsylvania estate lawyer to help them understand the processes and learn if they have been named to inherit anything. To your success,Gale Allison, Principal AttorneyAllison Firm, PLLCwww.theallisonfirm.comwww.linkedin.com/in/galeallison.com... Read More

You have my sympathies on your loss at such a young age. Still, you do have to probate your wife's estate. Only in the probate process can the title to the house and car be changed, and a legal ruling made about her debts. Fortunately, probate in Tennessee is much easier than in other states.Even though Tennessee's process is streamlined, it can still be complicated when there is no Will, so I recommend your first step is to hire an experienced Tennessee probate attorney now. To your success,Gale Allison, Principal AttorneyAllison Firm, PLLCwww.theallisonfirm.comwww.linkedin.com/in/galeallison.com... Read More

There is no "permission" to rewrite a Will after the testator (the person who's Will it is) has died. In most states, it is possible to make correction of errors to which there is no objection by filing an affidavit with the probate court. The process essentially allows a lawyer to admit to the his or her errors.Once the Will is submitted for probate, the parties affected (and generally, people of certain relationships to the decedent) are to be notified as required by state law. Those wanting to contest or correct its content then have a certain time period to file their challenges. The lawyer's affidavit that is filed to make changes must state specifically what mistakes were made and what corrections are needed. Then the judge reviews the state laws that apply, makes a ruling and orders what is to be done next to correct the errors. The time required depends on the state's laws.However, unless there are details or circumstances that you and I don't know, it should not take a year to get started. I am sorry to have to suggest it, but you might want to hire a different Tennessee estate lawyer to figure out what is going on. To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.com ... Read More

When you pass away your husband has rights to a portion of your estate unless you signed a Prenuptial Contract. Therefore if he dies after you do, his children will inherit from him. If he dies before you, his children will not inherit unless you name them to inherit in your Estate Plan. If you want to transfer the home into a Living Trust or otherwise sell or transfer your home, you will have to have your spouse's signature on the deed. It is always wise to have a formal estate plan to make sure your property is distributed the way you want it to be and so that people are not confused about what you want to happen if you die. You might want to discuss your various options with a Tennessee Estate Planning attorney. To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.com ... Read More

Serving as someone's power of attorney does not automatically give you access to their will.  The power of attorney is ONLY effective while the person is alive and MAY provide for disposition of that persons remains upon his or her death.  The power of attorney should ONLY be utilized when the individual is incapacitated or disabled and unable to handle his or her affairs personally.  An individual may give a copy of his/her will to whomever they choose.  However, at the person's death, whomever is in possession of the original will should file the will with the clerk of the court of the proper county within 30 days of the person's death.... Read More

Use of the term Executor may be what is confusing this issue. Let me try to clarify a couple of things for you. First, when one person and any other person(s) own property jointly, for instance CDs and checking accounts, the property is usually titled as being held in "Joint Tenancy with Right of Survivorship." All that means is that both parties own the property together and when one owner dies the other becomes the sole owner of that property regardless of whether the property was listed in a Will, or even if there was no Will. *This would only not apply if there is some sort of proof that the titling was not meant to give ownership of the property to the surviving joint tenant but instead, was solely for some sort of convenience. Example: Do you have proof that instead of naming a power of attorney to pay the deceased's bills when alive, the deceased had simply set up a person on the bank account in order to pay them? Second, an Executor is the person appointed by a court to administer the estate of a person who has died leaving a Will. The original Will nominates the person as Executor for the job of carrying out the instructions in the Will. When processing the Will in a probate proceeding, the court must officially appoint the Executor. So, you can see that there is no actual Executor until someone has died and a Will has been probated. Third, a person can be both a Joint Tenant and also an Executor because they are separate functions. Being the Executor does not mean that a person must give up joint ownership of property, or share the property with others who may be inheriting under the Will for which he or she is Executor. Finally, a Will only controls property that is titled in the decedent's name, alone. Property that is titled joint with rights of survivorship or is made payable on death to another person, is not subject to the terms of the Will unless it is proved that the titling is an error. I am answering this way because without further detail, your description of the situation sounds like the Executor may also own the CDs and bank accounts jointly with the deceased. It is possible, however, that the CDs and bank accounts were set up this way simply for convenience when paying bills or handling business or financial affairs of the deceased while he or she was still living. That would add a different layer of complexity. You should certainly visit an attorney licensed to practice in Tennessee to ask for clarification and get specific instructions for handling any follow up activities. To your success, Gale Allison, Principal AttorneyThe Allison Firm, PLLCTulsa, Oklahomawww.theallisonfirm.comhttp://www.linkedin.com/in/GaleAllison ... Read More