will

Should You Add Your Children to Your Financial Accounts When You Need Financial Assistance Later in Life?

A significant number of older individuals in Tennessee add one or more of their children to their bank accounts to help them manage their finances. They often do this as joint owners with right of survivorship in order to have them help to pay the bills and to take care of other matters late in life. This can be an option that sounds very appealing. However, doing this is a major problem and can cause devastating financial consequences that are completely unintended.

When someone adds another person as a joint owner on the account, any judgments that the other person obtains against them, could lead to collection efforts against your bank account. Once the other person is an owner, they are an owner of your account for all purposes. For instance, if one of your children gets into a serious car accident and severely injures or kills someone else, but they have insufficient insurance coverage to pay for the damages, then the injured party could obtain a judgment against them. They could then execute against your account to pay the judgment.

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Can an Appointed Executor Contest the Will They Offered For Probate in Tennessee?

A really interesting question was addressed by the Tennessee Court of Appeals recently on whether an executor who submitted a Will for probate and was appointed as executor can subsequently contest the terms of the Will. The Tennessee Court of Appeals in the case of In Re: Estate of Ellra Donald Bostic, No. E2016-00553-COA-R3-CV, 2016 WL 7105213 (Tenn. Ct. App. 2016) dealt with the specific question of whether an appointed executor can contest the Will that is being probated.

The Court noted that the legal doctrine that applies is “estoppel”. The reason is because “executors, as fiduciaries, owe a duty of undivided loyalty to the Estate and must deal with the beneficiaries in the utmost good faith.” In re: Estate of Wallace, 829 S.W.2d 696, 705 (Tenn. Ct. App. 1992).

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

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When is a Surviving Spouse Required to Make Election to Obtain Elective Share Against the Estate in Tennessee?

A surviving spouse has the ability to obtain an elective share (see prior post describing the details of an elective share under Tennessee law) of a decedent’s property by filing a notice with the court.  The surviving spouse is required to file a petition for an elective share within nine months after the date of the death of their spouse.  T.C.A. § 31-4-102(a)(1) provides as follows:

(a)(1) The surviving spouse may elect to take the spouse’s elective share in decedent’s property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death.

Additionally, an extension of the 9-month time period is allowed if there is litigation pending about the title of certain property such that an elective share determination could not be made with sufficient information.

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

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What Happens When an Insured Under a Life Insurance Policy and a Beneficiary Die Simultaneously in Tennessee?

Sometimes an individual who has a life insurance policy dies at the same time as a beneficiary.  Obviously, this does not happen very often, but it does happen on occasion.  Most often, when this occurs, it is simply just impossible to determine who actually died first.  In Tennessee, we have a statute that addresses this exact situation.  T.C.A. § 31-3-105 provides that when an insured and beneficiary under the policy die simultaneously, then the proceeds of that policy are distributed as if the insured under the policy had actually survived the beneficiary.  The actual language of the statute is as follows:

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

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What Happens When Joint Owners of a Bank Account Die Simultaneously in Tennessee?

Sometimes, two individuals who own a bank account as joint tenants with right of survivorship or tenants by the entirety, die at the same time. In this situation, the question is, what happens to the money in those accounts? Normally, joint tenant accounts with Right of Survivorship immediately pass to the surviving individual on the account. However, if there is a simultaneous death, the ownership of these accounts is often an unresolved issue. Thankfully, Tennessee adopted the Uniform Simultaneous Death Act long ago. T.C.A. § 31-3-104 provides as follows:

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

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How Do You Establish “Undue Influence” in Tennessee When Contesting a Tennessee Will?

One of the most common ways that Tennessee Wills are contested is based on the theory of “undue influence”.  This is a broad category where a will can be contested based on the theory that the person benefitting from the Will exhibited influence over the decedent in an inappropriate manner.  One example would be where a person manipulated someone who had dementia or Alzheimer’s into changing their will for that person’s direct benefit (often to the exclusion of other family members).

In order to establish that a Will was subject to “undue influence” in Tennessee, certain circumstances must be present.  This includes the following as notes by the Tennessee Court of Appeals:

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How Do You Contest an Individual’s “Lack of Testamentary Capacity” to Execute a Will in Tennessee?

One way to contest a will in Tennessee is to assert that the decedent had a “lack of testamentary capacity”.  Basically, this is an assertion that the individual who executed the will was not actually competent to execute the will.  Tennessee has many cases that discuss this claim in the context, most often, of a will contest situation.

The Tennessee Court of Appeals has said the following about what is required to establish “lack of testamentary capacity” contest to a will:

The law requires that the testator’s mind, at the time the will is executed, must be sufficiently sound to enable him or her to know and understand the force and consequence of the act of making the will.  American Trust & Banking Co. v. Williams, 225 S.W.2d 79, 83 (1948). The testator must have an intelligent consciousness of the nature and effect of the act, a knowledge of the property possessed and an understanding of the disposition to be made. Goodall v. Crawford, 611 S.W.2d 602, 604 (Tenn. App. 1981). While evidence regarding factors such as physical weakness or disease, old age, blunt perception or failing mind and memory is admissible on the issue of testamentary capacity, it is not conclusive and the testator is not thereby rendered incompetent if her mind is sufficiently sound to enable her to know and understand what she is doing. American Trust, supra; 79 Am.Jur.2d Wills § 77 (1975).

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

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Who Has Standing to Contest a Will in Tennessee?

In Tennessee, a party who is going to contest a will must have proper “standing” to actually contest the will.  This basically means that the individual must have the authority under Tennessee Law to contest the will before they can do so.  If they do not have proper standing, then the Court will simply dismiss the case.  Tennessee Courts have provided guidance on who has standing to contest a will.

The Tennessee Court of Appeals in Keasler v. Estate of Keasler, 973 S.W.2d 213 (Tenn. Ct. App. 1997) found that “in order to have standing to contest a will, the contestant must show that he would take a share of the decedent’s estate if the probated will were set aside.”

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In Tennessee Can you Force an Estate to Distribute Assets to the Heirs?

I am often asked to become involved in Tennessee probate estates as the attorney for the beneficiaries of the estate.  Often this is done to make sure the estate is running appropriately and sometimes this is done because my clients simply do not trust the executor or administrator of the estate (both are good reasons to hire an attorney to represent the beneficiaries).  When I am involved in this role for an estate, the most common question I get from my clients is about the timing of when the estate assets will be distributed to the heirs or beneficiaries of the estate.

Often I cannot answer this question to my client’s satisfaction because if I am not the attorney for the estate, it is hard for me to control how promptly and efficiently the estate is handled.

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In Tennessee How Much Does it Cost to Have a Will Drafted?

One of the most frequent questions I am asked is “How much does it cost to have an attorney draft a will in Tennessee?”  People often believe that obtaining necessary and important documents such as a Will, Power of Attorney, Healthcare Power of Attorney and Living Will is a very expensive and complicated process.  This is absolutely not true!  Many people are surprised when I tell them the actual cost of having these documents prepared.  With this in mind, I have decided to share my pricing for these documents so that people can be properly informed on the actual costs to have an estate planning package drafted by an attorney.  The cost is very insignificant when compared to the importance of having your final affairs in order.

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