4.04.25 Decedent's Estates

Does your state use terminology different from that provided in Section 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Tennessee follows, almost exactly, the terminology as set forth in Section 4-04-1 of the manual.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

There is no time limit for the Probate of a Will. There are other requirements, but time limitation is not one of them. Likewise, there is no limitation as to time, for the administration of an estate. However, there are statutes of limitation as to taxes, claims, etc. being barred. See TCA 30-1-101 as to administration of estates.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Tennessee is a common law state, hence, Community Property is not a consideration. Tenancy by the Entirety is commonplace in Tennessee. A necessary ingredient is legally married parties. Title passes to the survivor, free from claims of the deceased spouse.

Dower and curtesy is replaced in Tennessee by TCA 31-4-101, styled, Elective Share of Surviving Spouse which vest the surviving spouse with a percentage interest in the estate in accordance with the length of marriage. Spouse must dissent from will to obtain this interest. This interest will also pass free from claims of deceased spouse.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Tennessee abolished joint tenancy by TCA 66-1-107, which in fact converts same to tenants in common. However, this section does not prohibit the creation of estates of survivorship where the instrument creating such clearly indicates an intention for such. Case law supports this.

Do your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Surviving tenants by entirety, and joint tenants will take pursuant to the document creating such, even though a devise of the property was made in the will of deceased. It is the theory that they held only an expectancy, which vested, upon the demise of the other tenant.

Summarize the steps required for a testate administration. Provide statutory citations.

Title 30 TCA provides probate steps in administration of Deceased estates. Petition must be made to the Probate Court or Chancery Court, or in some rural counties, the County Court, for probate of Will. This is followed by the appointment of the Executor, Bond requirements, if any, publication and notification to heirs and creditors, the filing of inventory, payment of debts and taxes, settlement and finally distribution to the beneficiaries.

Summarize the steps required for an intestate administration. Provide statutory citations.

Same as for a testate administration, except in the case of intestacy, a Bond is required for the administrator, and distribution of assets, as provided in Title 31 TCA.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

In the case of intestacy, under the old underwriting procedures, it is necessary to obtain an affidavit of heirship from a disinterested witness, who knew the deceased, and who are familiar with their family history, and heirship. TCA 30-2-12.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Tennessee does have a "Small Estates Act", which provides for a one shot administration of a small estate. TCA 30-4-101, et seq. provides necessary requirements. This has a $25,000 limit.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Tennessee has no other alternatives.

Do your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Tennessee follows the Federal Plan, in that there is no Inheritance Tax due the State, provided that the estate does not exceed $675,000.00 in 2001. The value of the estate is based on the total assets of the estate, which includes life insurance, and all other assets. Either a non-taxable certificate is obtained, or a receipt for payment of inheritance taxes is necessary before an estate may be closed. See TCA 67-8-409 for alternatives to filing inheritance tax return.

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien? Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Tax is imposed on the estate of each decedent, pursuant to TCA 67-8-204, and it is a Class C misdemeanor to fail to file the return, per 67-8-422. Suit for enforcement is provided by 67-8-215. Taxes are barred by statute after 6 years, with an administration, no limitation without administration. A lien is imposed on all property of decedent estate, a partial release may be granted, upon application.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Under Tennessee law, title would pass to the heirs at law, upon the death of the titleholder, assuming that there was no will. It would be necessary to determine exactly who the heirs were, which is normally done through affidavits of heirship, as cited above. The sworn petition for administration would cite the heirs, however, this may be deemed as self serving. A non-taxable certificate, or a partial release of the real estate, by the commissioner would also be necessary. There is also a 6 months period, as stipulated in TCA 30-2-408, wherein a purchaser may take free from the right of any devisee under a will, filed subsequently. TCA 30-2-712 recites requirements for Heirship Affidavits. The Administrator can only convey in an insolvent estate or under court order.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

An executor may dispose of property, provided that the will vests the executor with the authority to sell the realty and make it part of the probate estate. Unless expressly authorizes to do, an so, order of the court must be obtained. An administrator of an intestate estate would be required to obtain permission of the court before any conveyance could be made.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

Same as above bulleted item. (See TCA 30-2-401 et seq.).

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

A will, duly proved, allowed and admitted to probate outside the State of Tennessee, may be allowed, and probated in this State, provided the testator left an estate in Tennessee. A Bond would be required of any executors, or administrators who are not residents of this State. TCA 32-5-101. et seq.