Answers to legal questions

posed by the general public to Memphis Attorney Christina Burdette

Q: Does a child who has been adopted get notified when one of both of his/hers biological parents has died?

A: A child cannot be adopted until his or her biological parents' rights have been terminated.

Once those rights are terminated, and the child is adopted, the adoptive parents are treated by the law as the natural parents of that child. Therefore, no notice needs to be given to a child when his/her biological parent(s) has died.


This 2012 Probate Guide has evolved from the former Probate Manual which was first published in 1975, and was revised in 1977, 1981, 1991, 2007 and again in 2012. The 2012 revision was offered to the Tennessee court clerks as a guide, including clerks and masters in most counties, whose court had probate jurisdiction. We have attempted to update this guide to reflect the most current changes in the probate code section. However, this guide is not a definitive study of the law of decedent’s estates. References to Tennessee Code Annotated section numbers are placed in appropriate places (in parentheses) throughout this guide to aid the user in finding relevant code sections. Case law is sometimes cited, but no attempt was made to provide detailed case law analysis. Further, the user of this guide should remember that statutory law and case law in this area is constantly evolving, so statements made in this guide must be verified before being relied upon, particularly in the years after 2012 until the current date. The basic format of this guide is to explain the life cycle of an administration of a decedent’s estate, whether testate or intestate. Although much of probate procedure is informal, it often involves a specialized vocabulary. For this reason, a glossary of terms often used in probate proceedings is included. Also attached to this guide are examples of various forms used in the probate court. The Probate Court The jurisdiction over the probate of wills and administration of estates is now vested in the chancery court unless a particular county has a special court for probate created by private act. See T.C.A. 16-16-201. Probate jurisdiction has been vested in General Sessions Court in several counties by private act. Under this law, where the chancery court exercises primary jurisdiction of probate matters, the clerk and master may perform many of the functions formerly reserved to the county judge, subject to the review and approval of the chancellor, as well as those duties formerly performed by the county clerk when acting as clerk of the probate court for a county judge or probate judge. Therefore, when the term “clerk” is used hereafter, it shall refer to the county clerk, clerk and master, probate clerk or any clerk exercising probate jurisdiction. However, because of the additional duties placed on the clerk and master when the chancery court exercises probate jurisdiction, specific reference to the clerk and master will often be necessary. Similarly, the term “judge” shall refer to judges having probate jurisdiction. The term “court” shall refer to the court exercising probate jurisdiction. As noted earlier, the clerk and master may perform some duties for the chancellor that other clerks could not perform for the county judge. Where the chancery court has probate jurisdiction, the clerk and master may “grant letters of administration and letters testamentary . . ., appoint administrators and executors . . ., receive and adjudicate all claims, probate wills in common form, determine allowances to the surviving spouse and family of the deceased, preside over the assignment of homestead, take and state all accounts and settlements, subject to the approval of the chancellor, direct and approve final distributions, and hear and determine all probate matters whether herein enumerated or not.” (T.C.A. 16-16-201) The court exercising probate jurisdiction of the county in which the decedent usually resided (was domiciled) at the time of his or her death has jurisdiction over the estate. However, if the deceased had fixed residences in more than one county in Tennessee, then either county’s court exercising probate jurisdiction has jurisdiction. (T.C.A. 30-1-102) Also, if the decedent owned real estate situated in another state, then that state will have ancillary jurisdiction to administer that state’s real estate. A finding of domicile by the probate court of one state is not binding upon the courts of another state, and each court finding domicile in that court’s state may administer the real and personal property within its own state. Letters testamentary or of administration may be granted upon the estate of a person who resided, at the time of his death, in some other state or territory of the union, or in a foreign country, by the probate court of any county in this state: 1. Where the deceased had any goods, chattels, or assets, or any estate, real or personal, at the time of his death, or where the same may be at the time when said letters are 2 applied for; 2. Where any debtor of the deceased resides; 3. Where any debtor of a debtor of the deceased resides, his debt being unpaid when the application is made; 4. Where any suit is to be brought, prosecuted, or defended, in which said estate is interested. (T.C.A. 30-1-103) Overview of the Testate and Intestate Estate Upon the death of a person, the real and personal property of the decedent must be distributed according to law. This law is basically the Tennessee statutory law found in Tennessee Code Annotated. When a person has made a valid will before death, then that person is said to have died testate or with a will. When a person dies without having made a valid will, then that person is said to have died intestate or without a will. Sometimes a person dies leaving a will that does not deal with all of the decedent’s property. In this case, the person dies intestate in regard to the property not passing by will. This guide will first deal with the situation involving decedents that have left a will, but will also review the procedure involved in intestacy. In many aspects, the administration is similar. Certainly, many advantages are secured through probate administration, such as clear vesting of legal title where real estate is devised by will. Some estates where the value of property in the estate is under $25,000.00 may be administered in a shortened manner under the Small Estates Act. (T.C.A. 30-4-101 et seq.) Administration is always necessary if one or more of the heirs is a minor, or if some of the heirs demand administration, or if there is a dispute among the heirs. Sample Guidelines for an Estate: 1. Determine if the decedent left a will and if so, the original will be needed for probate. 2. Determine if the will is self proving or authenticating, which means it has an affidavit attached to the will that was executed at the same time the will was executed. If the will is not self proving, it will need to be proven by affidavit or testimony of one witness. 3. To open a probate in: a. Common form, you will need a petition that contains all the information outlined in TCA 30-1-117, an order of probate, and the original will. b. Solemn form, you will need a petition that contains all the information outlined in TCA 30-1-117, and a summons/notice that will need to be served on all beneficiaries and/or heirs at law. The Clerk should file and issue the documents and set this for a court hearing. Following the hearing an order should be entered detailing the outcome of the hearing for probate in solemn form. 4. The clerk is required to send a notice to the Commissioner of Revenue, issue Letters of Testamentary with a will and Letters of Administration without a will. (If a request is 3 made to probate a will contrary to the specific directions in the will, the Clerk should issue Letters of Administration CTA, or with the will annexed, and Notice to Creditors. The clerk should collect the filing fee at the initiation of the estate. If bond is required, it should be received prior to the issuance of Letters. 5. File all documents relative to that estate until closure is ready. The clerk may request an affidavit from the representative or the attorney representing the estate, stating that actual notice to creditors has been given to all known creditors and the date received by such creditor, so that the clerk will know when an estate can be closed. 6. Closing documents required are: a. receipt/certificate from the Department of Revenue; b. release from the Bureau of TennCare on deceased individuals over the age of 55; c. a sworn statement that actual notice to creditors has been given by the personal representative to all known creditors; d. proof that all claims filed against the estate have been satisfied and/or released; e. a release from each beneficiary or heir or in the alternative; f. set the closure for hearing and make sure all heirs or beneficiaries have been notified by the attorney or the representative; g. a detailed accounting, unless waived by the will and/or by all the heirs, which is supported by legal vouchers. Or in the alternative, a motion or petition to close or a statement in lieu of settlement; and h. an order to close the estate. 4 CHAPTER TWO ADMISSION OF WILL TO PROBATE In Tennessee, any person of sound mind eighteen (18) years old or older may make a will in accordance with statutory requirements for validity. (T.C.A. 32-1-102) Strict compliance with the statutory requirements must be shown to a court. These strict requirements help to guard against fraudulent transfer of property by purported will. The process of proving a will in court is called “probate.” The court which takes the proof is the “probate court.” The person leaving a will is called a “testator.” When a will is presented to the court, either through a judge or clerk, the person presenting the will may simply produce the document to the judge (or clerk and master) and move that it be admitted to probate. The judge (or clerk and master) then presides over the presentation of the proof and orders admission to, or denial of, probate and grants or denies the application for letters testamentary. In many cases additional information will be helpful to the judge and the clerk, and a petition may contain other information, (see page 10), and an oath of the truth of the statements in the petition. Time Limitations on Probate Although there is no time limitation on the probate of wills generally, letters testamentary (or of administration) should not be granted after ten years of the date of the decedent’s death, as these would be considered by the law to be void and of no effect. However, there are three exceptions to this rule: 1. Where a person dies, entitled to a vested or contingent remainder, not reduced to possession in his/her lifetime, for ten years after the termination of the life or other particular/estate on which the remainder depends, letters shall be given to administer upon the estate in said remainder. 2. If a person entitled to distribution was an infant when the deceased died, then, letters may be granted at any time within twenty-two years from the date of death. 3. Also a special administration may be granted for the purpose of prosecuting any claim against the government of the United States without any limitation on time. (T.C.A. 30-1-110) A nuncupative (oral) will must be submitted for probate within six months after the death of the testator in order to be valid. (T.C.A. 39-1-106) 5 Who Presents the Will or Wills Any “interested person” (see glossary) may present the will for probate. If more than one will exist, both wills should be presented. Corrupt destruction or concealment of a will with intent to prevent probate or to defraud is a felony punishable by imprisonment. (T.C.A. 32-14- 131, 40-35-111) Renunciation by Devisee A person who is entitled to take property under a testamentary instrument may renounce in whole or in part the succession to any property or interest passing by the will. Common Form Probate No formality is required in proving a will in common form. Usually, the will is presented to the judge, or clerk and master, and motion is made that it be admitted to probate. The clerk will make a minute entry of the motion. The judge, or clerk and master, will then hear the required proof (see “Sufficiency of the Will” below). No one can object to this proof except by intervening as a contestant (see “Contest” below). The proof must meet the statutory requirements. If the judge finds the will to be not proved, he denies probate. If he finds it to be proved, he orders it admitted to probate and may order letters testamentary granted if they are applied for (see Chapter Four, Letters and Bond, below). The personal representative, executor or executrix (see glossary), then administers the estate. Solemn Form Probate Solemn form probate will be used where the will is nuncupative in every case, or where the person presenting the will desires to either resolve any possible objections or else desires to force any objectors to make a contest. Two main differences from common form may be noted: 1. notice and its effect, and; 2. the measure of proof required. Notice and Its Effect In solemn form probate, contest must be offered when the will is offered for probate or never. All persons interested (see glossary) must be notified of the proceedings in order to be bound by it and in order to cut off future contests. If for some reason an interested person is not notified, the proceedings are to him/her as in common form and his/her right to contest is not cut off at a later date. 6 Notice is by service, or in a proper case, by publication. Time of Notice Resident parties must be served with notice at least five days before offering the will for probate. Non-residents must be notified by publication and the return-receipt certified or registered mail notice in accordance with statute. (Also see T.C.A. 21-1-204, 21-1-205) Other Considerations A guardian ad litem should usually be appointed for minors and mental incompetents, for often the minor’s actual guardian is a party to the proceeding also, and a court appointment of a guardian with no “interest” in the suit will avoid a conflict of interest in the person of the guardian. Jurisdiction is covered above (See Chapter One, Introduction, The Probate Court). Sufficiency is covered below (See Sufficiency of the Will). A will duly probated in another state may be admitted and recorded in any county of this state in which the testator left any estate. (T.C.A. 32-5-101) When an authenticated copy of a will probated in another state and the probate of such will is presented by the executor or other interested person, these documents must be filed and probate may be had in either common or solemn form. If in solemn form, notice must be given for a hearing at an appointed time as on a petition for original probate of a domestic will in common form. However, a contest of such a will as to its validity shall apply only to a devise of realty lying in Tennessee. Distribution of personal property is according to the probate of the will in the other state. (T.C.A. 32-5-103) The court’s duty is to examine the certifications and authentications. (In re: De Franceschi’s Estate, 70 S.W. 2d 513, 17 Tenn. App. 673 (1933)) Proof of certification or authentication shall be sufficient by the attestation of other state’s clerk and seal of the court, if a seal exists, together with a certificate of a judge of the court that the attestation is in proper form. Upon profert of the will or a certified copy and the requirements of law being met to the satisfaction of the probate judge, probate and administration shall be held in the same manner as with all domestic wills including letters, bonds, contest, etc. 7 Sufficiency Of The Will Common Form The judge (or clerk and master) should look to the following to see if the will meets the requirements of due execution. The signature of the testator should be on the will and proved. Unless the will is selfproving, the following question of the witness might be used: “Mr. , did you and (the other witness) sign this each of you in the presence of the testator and in the presence of each other, and did the testator indicate that this was his/her signature and this document was his/her will?” A. For a written will with witnesses. The law requires that a written will (not a holograph-see glossary) be subscribed by at least two witnesses who sign in the presence of each other and in the presence of the testator, and the testator must have indicated in some manner to them that the document was his/her will. A witness is “interested” if the will gives to him or her some personal and beneficial interest. Unless the will is also attested by two disinterested witnesses, an interested witness can receive no more than he or she would have received had the testator died intestate and forfeits any value in excess of that intestate amount. (T.C.A. 32-1-103) Unless the will is self-executing (See “Affidavits” below), at least one of the subscribing witnesses, if living, must be produced and examined and if the witness remembers and can testify to all the formalities the law requires for due execution, no other witness need be called. (T.C.A. 32-2-104) But if the witness can only testify as to his/her part of the execution, the other witnesses must be produced if living and within the jurisdiction of the court. If the others be either deceased or beyond the court’s jurisdiction, then their signatures and that of the testator must be proved by persons familiar with the handwriting. B. For a holographic will. It need not be dated. Apparently if the will was executed on or before February 15, 1941, the handwriting and signature of the deceased must be proved by at least three witnesses. If executed after that date, then by two witnesses. The signature of the testator need not be at the end of the will although it may be; he/she must have written his/her name as some part of the document. 8 Solemn Form At the time fixed in the notice to parties, all subscribing witnesses to be found should give testimony of due execution as required by law. If more than two have subscribed, then all still should testify. In the event no subscribing witnesses are to be found, or if the will is a holograph and there are no subscribing witnesses, then diligence is required in the search for the production of such witnesses who may testify; subpoena should issue, inquiry at residence should be made, and relatives and friends questioned as to the witness’s present whereabouts. Return of subpoena and in some cases affidavit with questions and answers of inquiries may be then given in evidence. (See “Secondary Proof” below.) If the judge so allows, proof of witnesses residing outside the state or county or unable to testify in person may be taken on interrogatories or deposition. A nuncupative will must be probated in solemn form. (Brown v. Harris, 68 Tenn. 386, (1876)) It may be made only by a person in imminent peril of death, whether from illness or otherwise, and is valid only if the testator died as a result of the impending peril, and must be: 1. Declared to be his/her will by the testator before two disinterested witnesses. 2. Reduced to writing by or under the direction of one of the witnesses within thirty days after declaration; and 3. Submitted for probate within six months after the death of the testator. The nuncupative will may dispose of personal property only and to an aggregate value not exceeding $1,000.00, except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be $10,000.00. A nuncupative will neither revokes nor changes an existing written will. (T.C.A. 32-1-106) Affidavits In common form probate, a witness to any will may make and sign an affidavit stating therein the facts of due execution which he/she would testify to if in court proving the will. The affidavit must be sworn to before any officer authorized to administer oaths (usually a notary public), and such officer may be in or out of Tennessee. There should be two witnesses to the signing of the will. The request for affidavit may come either from the testator (i.e., when the will is made), the executor, or any person interested under the will (i.e., when the will is offered for probate). (See T.C.A. 32-2-110) 9 Secondary Proof When direct evidence of due execution of a will cannot be obtained, then secondary proof may be admitted. Proof of the signature of a witness to the will may be made by persons familiar with the handwriting of the witness, and a presumption is then made that the witness signed with due execution. If proof of one witness’s handwriting is unavailable in solemn form, then proof of the signature of one witness and that of the testator is sufficient. If no witness’s handwriting can be proved, then proof of the testator’s signature by two persons may be sufficient. Out-of-State Execution of Will A will executed outside this state in either: 1. the manner prescribed by the law of this state, or 2. the manner prescribed by the law of the place of its execution, or 3. the manner prescribed by the law of the testator’s domicile at the time of its execution, shall have the same force and effect in this state as if executed in compliance with the execution requirements of this state. (T.C.A. 32-1-107) If common law or statutes of other states are relied on, the court shall take judicial notice of them. If adverse parties exist, reasonable notice must be given if a party requests the court to take judicial notice of any other types of law. (Tenn. R. Evid. 202) Construction of Will Any court of record having probate jurisdiction has concurrent jurisdiction with chancery court for the construction or interpretation of wills, or parts thereof, and for establishing lost, spoliated, or suppressed wills. (T.C.A. 32-3-109) The probate judge should admit a will to probate if the sufficiency of the execution is proven. Any relief from uncertainty of meaning must be sought in chancery or any court of record having probate jurisdiction. Any “interested” person may file a suit asking for a judicial construction of the provisions of the will No breach of duty nor wrong doing need be in question for a construction to be sought. 10 All Petitions to Open Estates or Admit Wills to Probate shall include the following, as required by T.C.A. 30-1-117 . The petitioner’s name and address. . The decedent’s name, age (if known), date and place of death, and residence address at date of death. . A copy of the document(s) offered for probate attached as an exhibit to the petition. . A statement that the decedent died intestate or the date of execution of the document(s) offered for probate (if known) and the names of all attesting witnesses of the document(s) offered for probate. . If the decedent died intestate, the name, age (if known), mailing address, and relationship of each heir at law. . If the decedent died testate, the names, relationships, and city of residence of the devisees and legatees and those who would otherwise be entitled to the decedent’s property under the laws of intestate succession. . The identification of any heirs of beneficiaries who are minors or are under a disability. . Unless bond is waived by the document offered for probate or in writing by all interested parties as authorized by statute, an estimate of the fair market value of the non-real estate assets. . Whether the document offered for probate waives the filing of any inventory and accounting or whether such is not otherwise required by law. . A statement that the petitioner is not aware of any instrument revoking any document being offered for probate, and that the petitioner believes the document being offered for probate is the decedent’s last will. • The Petition should be sworn to. (Note: If the petitioner is unable to truthfully make any statement or if the statement is qualified, a full explanation should be furnished.) 11 CHAPTER THREE WILL CONTESTS Only persons who would be entitled to benefit by sharing in the real or personal estate of the deceased if there were no will, or if a prior will were revived, are entitled to contest the will. It is the person’s personal right; it may not be assigned; nor is it necessary that he/she unite with others. The person must show his/her “interest” as if there were no will and thus prove his/her right to contest. However, the clerk has no discretion in accepting a will contest and must file or record whatever notice is given. Jurisdiction Any court of record that has probate jurisdiction has concurrent jurisdiction with circuit court to try a will contest. (See T.C.A. 32-4-109). Certificate of Contest The contestant shall, in the notice of contest, elect the trial court the contest will be certified to. (See T.C.A. 32-4-109). (Local rules and practice may apply). Bond If the right to contest the will is sustained, then the court must require the contestant to enter into a bond in the amount of $500.00, see T.C.A. 32-4-101(a)(1). If a legatee or devisee be an adult and have notice that the probate is contested, then he/she must give a $500.00 bond. ( T.C.A. 32-4-102(a)(1)). If because of poverty, a contestant, devisee, or legatee is unable to bear the expense of the litigation, then he/she may complete the pauper’s oath. Pursuant to T.C.A. 20-12-127, the person must be a resident of Tennessee and must complete the Uniform Civil Affidavit of Indigency promulgated in Rule 29, Tennessee Supreme Court Rules. Contest Before Probate In Common Form When the will is offered for probate, the person desiring to contest makes known his/her desire. The person contesting the will need not have given notice. However, if interested persons were cited into court on a probate in solemn form, the contest must be made known at that time. See Chapter Two. Pursuant to T.C.A. 32-4-101: 12 1. Court must enter an order sustaining or denying the right to contest 2. Bonds must be posted 3. Contestant must elect the trial court for the contest Proceedings To Set Aside Probate In Common Form Pursuant to T.C.A. 32-4-108, “all actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues.” Pursuant to T.C.A. 32-4-101: 1. Court must enter an order sustaining or denying the right to contest 2. Bonds must be posted 3. Contestant must elect the trial court for the contest A proceeding to set aside a probate in common form is filed in the form of a complaint, with a summons issued to all interested parties. See Pritchard on Wills and Administration of Estates, Chapter 6, Article III. 13 CHAPTER FOUR LETTERS AND BOND Legal Authority (T.C.A. 30-1-101 et seq.) No person may enter upon the administration of a deceased person’s estate until he/she has procured authorizing letters, whether they be testamentary or of administration. T.C.A. 30-1- 101. A person serving as an executor or administrator may also be referred to as a personal representative. All Letters shall be recorded by the clerk. 1. Letters Testamentary are issued to the person named as executor in the Last Will and Testament of a decedent. 2. Letters of Administration are issued to the person serving on an intestate estate. 3. Letters of Administration CTA are issued to a person other than the person named as executor in the Last Will and Testament. 4. Administrator pendente lite is appointed where a will is contested. 5. Administrator ad litem is appointed where there is no personal representative or the personal representative is adversely interested. The probate court of the county of decedent’s residence has jurisdiction to grant letters. If the decedent was a resident of more than one county, either county has jurisdiction. T.C.A. 30-1-102, T.C.A. 32-2-101 If the decedent is a nonresident of the state, the probate court of any county in this state has jurisdiction where (1) the deceased has property; (2) any debtor of the deceased resides; (3) any debtor of a debtor of the deceased resides, if debt is unpaid; and (4) any suit is to be brought, prosecuted, or defended in which the estate has an interest. T.C.A. 30-1- 103; any nonresident may serve as personal representative of an estate. See T.C.A. 30-1-104 regarding service of process. Application for Letters Testamentary or Letters of Administration shall be made by a verified petition (T.C.A. 30-1-117). No notice is required except for a solemn form probate. Any personal representative shall take an oath for faithful performance. The oath may be taken in the presence of the judge, a clerk or a notary public (T.C.A. 30-1-111). In an intestate estate, administration shall be granted to first the spouse, then to the next of kin, and then to a creditor proving debt (T.C.A. 30-1-106). 14 Bond Bond is required unless: 1. The will waives bond 2. The residuary beneficiary and the personal representative are the same and the court approves 3. All beneficiaries of the estate are adults and waive in writing and the court approves 4. The personal representative is a bank and excused pursuant to 45-2-1005. If bond is required, letters shall not issue until a sufficient bond is made by the personal representative. Bond shall be at least the value of the estate and not more than double the value of the estate. (Pursuant to T.C.A. 31-2-103, the real property vests immediately on death and is not administered by the personal representative unless authority is given in the will or upon court order). The bond shall be payable to the state and have two sureties or one corporate surety. Creditor to Qualify If neither the spouse nor next of kin make application for administration, then administration shall be granted to a creditor proving the decedent’s debt on oath before the probate court; provided, that when there is more than one next of kin, the probate court may decide which of the kin shall be entitled to administration (T. C. A. 30-1-106). The court may appoint an administrator when six (6) months have elapsed from death, and no person will apply or can be procured to administer on the decedent’s estate.(T.C.A. 30-1- 301). 15 CHAPTER FIVE ELECTIVE SHARE AND ALLOWANCES Upon application by the surviving spouse, the personal representative is required to disclose the state and condition of the estate so that the surviving spouse may act as personal interest may require. (T.C.A. 31-4-103) These petitions may only be filed within 9 months after the date of the decedent’s death. (T.C.A. 31-4-102) Allowances to Family Specific Exemptions In case of intestacy, the surviving spouse or unmarried minor children and in case of testacy a dissenting spouse is entitled absolutely to the following property of the estate having a Fair Market value that does not exceed $50,000.00: 1. Tangible personal property normally located in, or used in or about, the principal residence of the decedent and not used primarily in trade or business or for investment purposes, and 2. A motor vehicle or vehicles not used primarily in a trade or business. If there is no surviving spouse, the decedent’s unmarried minor children are entitled as tenants in common only to exempt property as described in subdivision (a)(1). Rights to this exempt property are in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead or year’s support allowance.

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