Frequently Asked Questions

Probate of a Will
  • How do you probate a will?
    • The probate of a will is initiated by filing a petition with the probate court.
  • Who is responsible for offering the will for probate?
    • It is the duty of the personal representative named in the will to offer the will for probate.
  • Are there different kinds of probate?
    • Yes, wills may be admitted to probate in common form or in solemn form.

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Probate in Common Form
  • What is a probate in common form?
    • Most often, wills are offered for probate in common form. The process is somewhat simpler. A probate in common form can be set aside later however for reasons such as fraud or if someone later proves that the testator (the person who’s will it is) did not have the capacity to make a will, was unduly influenced to make the will, or the will was revoked before the testator’s death.
  • What is the procedure for offering a will for probate in common form?
    • Generally, the procedure for offering a will for probate in common form is to file a petition, produce the will, and offer the testimony of the subscribing witnesses to the will.
  • What type of information must be included in a petition offering a will for probate in common form?
    • The identity of the person filing the petition;
    • The name, age if known, date and place of death, and residence at death of the deceased person;
    • The date the will was signed and the names of the witnesses to the will;
    • The will or a copy of the will (with the original to be presented at the hearing);
    • The names and relationships of the people receiving property in the will and their city of residence if known;
    • Similar information for the people who would inherit if there was not a will;
    • If any of the people identified above are not yet 18 years old or have some other disability then that should be identified to the court;
    • The value of the testators estate unless bond is waived;
    • Whether the filing of an inventory and accounting has been waived in the will;
    • A statement that the petitioner is not aware of any document revoking the will offered for probate and believes that the document being offered is the decedent’s last will

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Probate in Solemn Form
  • When are wills offered for probate in solemn form?
    • Generally, wills are offered for probate in solemn form when an objection to the will is anticipated. Notice is required to be given to all interested people (those who receive property under the will and those who would have if received property if there had not been a will).
  • Does probating the will in solemn form mean there cannot be future will contests?
    • Yes, if all interested persons are notified.
  • Is the probate void to those persons not notified?
    • The probate is not void as to those persons not notified, but only has the effect of a common form probate.

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Will Contests
  • What is a will contest?
    • A will contest is a legal proceeding challenging the validity of a will.

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Initiation of contest
  • How is a will contest started?
    • A will contest can be started at the time the will is offered for probate by filing a written objection to the probate. After the will has been admitted to probate the will contest must be initiated by filing a verified complaint in Probate Court.
  • Is there cost involved?
    • The person contesting the will must post a $500.00 bond. There also may be filing fees charged by the court clerk.
  • Where is the will contest tried?
    • The will contest is to be tried in the county in which the will is admitted to probate.

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Challenges and Burdens of Proof
  • Who bears the burden of proof?
    • The person supporting the will has the initial burden of proof to establish the validity of the will.
    • Once the proponent has produced the will and proven its formal execution and the will has been read to the jury, the burden shifts to the contestant to invalidate the will.
  • On what grounds may a contestant invalidate a will?
    • There are numerous grounds upon which a contestant may try to invalidate a will including:
      • Lack of testamentary capacity (infancy or unsound mind)
      • Fraud or undue influence
      • Improper execution or attestation
      • Revocation by the testator

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Lack of Testamentary Capacity
  • At what age can a person make a will?
    • Any person of sound mind who is eighteen years of age or older may make a will.
  • What is required to show that the person had capacity to make a will (testamentary capacity)?
    • Generally, all that is required to show testamentary capacity is that the testator was aware of the property of which she was giving away and how she was distributing it, knew who the people were who you would normally expect someone to leave their property to, and understood the significance of how she was distributing her property.
  • What evidence is relevant in determining testamentary capacity?
    • Evidence regarding factors such as physical weakness, disease, old age, failing mind or memory, and impaired perception is generally admissible.

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Undue Influence
  • What is undue influence?
    • Undue influence is that level of influence that goes to the extent of depriving the testator of her free agency (in other words, deprives her of making her own decisions).
  • Who has the burden of proving undue influence?
    • The burden of proving undue influence is on the person contesting the will.
  • What are some examples of “suspicious circumstances” that are often used as evidence of undue influence?
    • The existence of a confidential relationship between the testator and the beneficiary
    • Physical or mental deterioration of the testator
    • The testator’s advanced age
    • Secrecy concerning the will’s existence
    • The unjust or unnatural nature of the will’s terms
    • The testator being in an emotionally distraught state
    • The beneficiary’s active involvement in procuring the will
    • Discrepancies between the will and the testator’s expressed intentions
    • Fraud or duress directed toward the testator

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Confidential Relationships
  • What is a confidential relationship?
    • Because confidential relationships assume a variety of forms, courts have been hesitant to define precisely what constitutes a confidential relationship. The existence of a confidential relationship together with a transaction by which the dominant party obtains a benefit, gives rise to the presumption of undue influence.
  • Do acts of kindness and attention show undue influence?
    • Influence arising from mere acts of kindness and attention does not constitute undue influence unless the acts are carried out with the purpose and design of subjecting the mind of the testator to the influence and direction of the person exercising the influence
  • Who has the burden of proof regarding confidential relationships?
    • In order to rebut allegations of undue influence and/or the presumption established by proof of a confidential relationship and a benefit to the dominant party, the beneficiary must show the fairness of the transaction and the nonexistence of the presumed undue influence

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Fraud
  • Is fraud the same thing as undue influence?
    • Though seemingly similar, they are conceptually different theories. Fraud differs from undue influence in that it does not override the testator’s free will, but instead induces the testator to exercise that free will in a manner based upon false information
  • What is fraud?
    • The basis of fraud is misrepresentation or deception. It involves a trick or artifice or the other use of false information to induce a person to dispose of his or her property in a way that he or she would not otherwise have done but for the fraud

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Revocation
  • A will or any part of the will can be revoked by the following:
    • A subsequent will…which revokes the prior will or part expressly or by inconsistency
    • Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, which revokes the prior will or party expressly
    • Being burned, torn, canceled, obliterated or destroyed, with the intent of the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction
    • Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will

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Statute of Limitations
  • Is there a statute of limitations in Tennessee with regard to the probating of a will?
    • No, when probated, the will relates back to the time of the testator’s death.
    • The only applicable statute of limitations applies to actions to contest or set aside the probate of a will. Those actions generally must be brought within two years from the entry of the order admitting the will to probate.

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Please note that the information provided herein is for the convenience of the reader, but is not legal advice. Reliance on this information does not create an attorney-client relationship. Reliance on this information without consultation and representation by a lawyer is discouraged.