Tennessee Probate: Common Questions

Probating a will is the process of proving that it is valid and does indeed represent the last wishes of the deceased. The Tennessee Probate Court is charged with distributing the property of the estate in accordance with the last wishes of the deceased.

Clients often ask what to do when a beneficiary to the Last Will and Testament refuses to produce the Will, or refuses to probate the Will. Anyone who does this may be in violation of the law. Tennessee Code Annotated Section 39-14-131 states that “any person who destroys or conceals the last will and testament of a testator, or any codicil thereto, with intent to prevent the probate thereof or defraud any devisee or legatee, commits a Class E felony.” A Class E Felony is punishable up to six years of jail time. In many cases the threat of jail time is enough to get the individual to produce the Will.

It is not uncommon for the person that was greatly involved in the care of the deceased to have procured a new Will from the deceased. In order to determine whether or not the new Will is valid, a court will consider whether the deceased was of sound mind at the time the Will was executed. In such instances the court may consider such factors as physical weakness, disease, old age, and failing mind or memory of the deceased.

The court will also consider whether or not undue influence was involved in the creation of the will. In these types of cases, a key question is whether or not a confidential relationship existed between the deceased and the beneficiary that procured the Will. If a person is determined to have had a confidential relationship with the deceased, that person must prove the fairness of a transaction between that person and the deceased by the highest standard of proof for the validity to hold.

It is also not uncommon for a caretaker or relative with undue influence over the deceased to have taken control of the assets of another before he or she dies. One may also challenge these transfers under several theories including fraud and breach of fiduciary duty.

In all of the above circumstances including a Will contest to challenge the validity of a Will or to bring claims of fraud and breach of fiduciary duty, you should contact an attorney to discuss the specifics involved in your situation. With more than 75 years of combined experience, The Lawyers of Brown & Roberto are serious lawyers who know how to win. Attorney Timothy Roberto is experienced with Tennessee Probate cases and is available to answer any questions you may have about probating a will in Tennessee. Give us a call at (865) 691-2777 or contact us through our website Brown & Roberto, PLLC to set up a free consultation.