Serving As Executor of an Estate in Tennessee
Probate is a court-supervised process to transfer property from a deceased person’s estate to the individuals and/or institutions legally entitled to receive such property (the “heirs” or “beneficiaries” of the estate). During the probate process, a person(s) (individual(s) and/or institution(s)) must be responsible for the administration of the estate. The estate administration process includes, for example, taking care of property, paying bills and taxes, “winding up” the deceased’s financial affairs, and ensuring that the heirs receive their proper inheritance.
In a testate estate (where the deceased person left a Will), the deceased person typically will have named his/her executor in the Will. In an intestate estate (where the deceased person died without a Will), the Court will appoint a personal representative to administer the estate.
In the case of intestacy, Tennessee law establishes a priority of who can serve as personal representative. This order of preference is as follows (if the person is willing and able to serve): (i) the spouse; (ii) next-of-kin (if there is more than one next-of-kin who petition to be appointed, the Court will decide who shall serve); and, if no such next-of-kin, a creditor of the estate who proves a legitimate debt may serve.
After the personal representative/executor is appointed by the Court, Letters will be issued to this person; these Letters evidence the person’s authority to handle the affairs of the deceased person’s estate. In a testate estate, these documents are called Letters Testamentary. In an intestate estate, they are called Letters of Administration.
Serving as personal representative/executor can be a big undertaking. A personal representative/executor is considered a fiduciary, a person who holds a legal or ethical relationship of trust with a person or group of persons. Various fiduciary duties and responsibilities are involved, and the personal representative/executor can be held personally liable for errors or mismanagement of the estate. This includes not paying taxes and filing returns on time; missing other estate administration deadlines; favoring one beneficiary over another; loss of assets, etc. In fact, when the personal representative/executor is first appointed, he/she will sign an oath swearing that he/she will properly perform the duties to the best of his/her responsibility.
Select Duties and Required Filings of a Personal Representative/Executor
The responsibilities of a personal representative/executor include, but are not limited to, the requirements of inventory and notice to creditors.The Inventory
Within 60 days of your appointment as Personal Representative/Executor, you will have to file an Inventory of the estate’s assets with the Court. The Inventory will be a complete and accurate list of the estate’s assets, including notes and other evidences of debts due the estate; assets subject to liens or other pledge of security; and intangible property. You may also want to consider including an appraisal of each item in the Inventory. You will have to verify the Inventory with a signed Oath stating that the information is complete and accurate. Notice must also be sent to the heirs receiving bequests and the heirs sharing in the estate’s residue.
Please note, the requirement of Inventory can be excused by the decedent’s Will. Alternatively, all of the decedent’s heirs may specifically waive the requirement in a written statement to the Court.Notice to Creditors
Within 30 days of the issuance of Letters Testamentary/Letters of Administration, the Court clerk will provide public notice of the opening of the estate. This notice is generally via publication in a local newspaper and will contain the date the estate opened and the name of the personal representative/executor. The Court clerk will send a copy of this notice to you.
Under Tennessee law, a personal representative/executor’s duties include identifying known and potential creditors of the decedent and/or the estate. You will have to conduct a reasonable search for creditors; generally, it is good practice to obtain credit reports on the deceased, review financial records, and look at the deceased’s mail in order to identify creditors.
Once known and potential creditors are identified, you will need to provide notice of the probate estate to such creditors. Typically, this involves sending a short letter identifying yourself and enclosing a copy of the Court’s published Notice.
Tennessee law states that a creditor must file a claim against the estate within four (4) months of the date of first publication of the Notice, or the claim will be forever barred. However, the claim filing period can be extended according to when the creditor received an actual copy of the Notice. For example, if a creditor received notice at least 60 days prior to the expiration of the four (4) month period, then such creditor must make a claim within four (4) months of the date of first publication. However, if a creditor received notice less than 60 days prior to the expiration of the four (4) month period, then the creditor has 60 days from his/her/their receipt of such notice to make a claim against the estate. At most, a creditor claim must be made within twelve (12) months after the deceased’s date of death.