Legal News And Updates

The Revised Uniform Fiduciary Access to Digital Assets Act

Public Chapter 570 (HB0774/SB0326)

The Revised Uniform Fiduciary Access to Digital Assets Act (“Revised UFADAA”) became law in the state of Tennessee as of July 1, 2016. This Act allows account holders who reside in the state of Tennessee or resided in Tennessee at the time of their death to plan for the ultimate disposition of their digital property. The Revised UFADAA also provides a means for fiduciaries (which include personal representatives acting for a decedent, agents acting under a power of attorney or a will, conservators, guardians, and trustees) to access, manage, protect, and distribute digital assets of an account holder. The Revised UFADAA, however, does not apply to the digital assets of an employer used by an employee.

Under the Revised UFADAA, an account holder may direct an online service provider through an online tool offered by the provider or through a will, trust, power of attorney, or other instrument to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications, to a fiduciary. In the event the account holder has not provided direction regarding the disclosure of digital assets, the online provider’s terms-of-service will control, and to the extent the terms-of-service are silent, the default rules set forth in the Revised UFADAA will apply. In addition, a court may direct disclosure of an account holder’s digital assets to a fiduciary.

Online service providers must comply with a request made pursuant to the Revised UFADAA within 60 days after receipt of the information required for the request. The online service provider may comply with a request for the disclosure of digital assets by either allowing the fiduciary full access to the account holder’s account (or partial access to perform a specific task) or by providing a copy of all digital assets that the account holder could have accessed on the date of the request. As for electronic communications (i.e., email, text messages and social media), if certain conditions are met, an online service provider need only disclose a catalogue of electronic communications and is not required to disclose the content of these communications unless a deceased account holder specifically consented to such a disclosure or a court directs disclosure of the content.

Of course, a fiduciary continues to owe duties of care, loyalty, and confidentiality when managing digital assets.

The Revised UFADAA provides a means for fiduciaries to gain access to an account holder’s digital assets to obtain information necessary to manage the account holder’s affairs and preserve the value of their digital assets while abiding by the account holder’s wishes and maintaining their privacy rights, which prior to the passage of this Act was often very difficult to accomplish. The Revised UFADAA will likely result in more efficient administration of estates of decedents and more efficient management of assets of a minor or person with a disability.

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Fiduciaries May Request Waiver of Court Approval to Change Nature of Investment and May Invest in Income-Producing Property

Public Chapter 640 (HB 1700/SB1810)

Effective Date 3/23/2016

The Tennessee Legislature recently passed legislation providing that the court now has discretion to waive the requirement that a fiduciary request court approval for a change in the nature of any investment described in a property management plan. See Tenn. Code Ann. § 34-1-115(f). The court may approve a request for such a waiver at a hearing as long as all of the respondent’s heirs at law or beneficiaries had notice of the hearing and an opportunity to be heard regarding the proposed waiver and change of the nature of the investments.

In deciding on whether a waiver should be granted, the Court may consider a number of factors, including the fiduciary’s history as a conservator, the length of the conservatorship, the number of years the fiduciary has acted as a conservator, and any other factors the court deems proper. In addition, the court may require the conservator to obtain professional advice or assistance regarding the investment of excess funds.

If a waiver is approved by the Court, the fiduciary must maintain a minimum balance of funds sufficient to cover the anticipated costs of care of the ward for a minimum of three (3) years and must include in all required accountings a detailed outline of the investments made on behalf of the ward and the current status of those investments.

This legislation also provides that fiduciaries may now invest a ward’s funds in income-producing commercial and residential property in addition to the list of approved investments set forth in Tennessee Code Annotated §§ 35-3-103 – 35-3-11. See Tenn. Code Ann. § 35-3-102.

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Recent Amendments to Statutory Provisions Regarding the Administration of Estates

Public Chapter 809 (HB2172/SB2254)

Effective Date 4/14/2016

The Tennessee General Assembly recently amended several provisions of Titles 30 and 35 of Tennessee Code Annotated dealing with the administration of estates. First, the amendment allows waivers of otherwise required accountings filed by the distributees of the residue of an estate, which in the past had to be filed with a sworn statement of the distributees, now to be executed with either a sworn statement or with a statement under penalty of perjury. Tenn. Code Ann. § 30-2-601(a)(4)(B). Likewise, the amendment also provides that an executor named in a decedent’s last will and testament may decline to serve as a personal representative by filing a sworn statement or a statement under penalty and perjury with the court. Tenn. Code Ann. § 30-1-112(a). In addition, in light of the fact that no tax is imposed on the estates of decedents dying in 2016 or thereafter, a receipt from the department of revenue is no longer required to be filed for estates where the decedent’s death occurred on January 1, 2016 or later. Tenn. Code Ann. § 30-2-601(b)(1).

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Witness Signatures on a Self-Proving Affidavit May Be Considered Signatures to the Will for Wills Executed Prior to July 1, 2016

Public Chapter 843 (HB1472/SB1560)

Effective Date 4/19/2016

The Tennessee General Assembly recently amended Tenn. Code Ann. § 32-1-104 to rectify the result of In re Chastain, 401 S.W.3d 612 (Tenn. 2012) as to the signatures of attesting witnesses to a will. In Chastain, the Tennessee Supreme Court held that where the decedent failed to sign his will but signed an affidavit of attesting witnesses, the statutory requirement that the testator’s signature be on the will was not met; thus, the will was not valid.

Although this amendment does not change the requirement that a testator must sign his or her will in order for it to be valid, it provides that for wills executed before July 1, 2016, a witness signature on an affidavit is considered a witness signature on the will for purposes of determining the will’s validity as long as certain statutory requirements are met. Specifically, the affidavit signed by the witness must meet the requirements set forth in Tenn. Code Ann. § 32-2-110 for self-proving affidavits, the witness signature must have been made at the same time that the testator signed the will, and the witness signature must meet the requirements for attesting witness signatures set forth in Tenn. Code Ann. § 32-1-104(a). Further, the amendment provides that if the witness signed the affidavit on the same date that the testator signed the will, it is presumed that the witness and the testator signed at the same time, unless rebutted by clear and convincing evidence. Finally, if the witness signature on an affidavit is used for the purpose of determining the validity of a will, the affidavit signed by the witness will no longer serve as a self-proving affidavit.

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The Right to Communicate With Other Persons May Be Removed From Ward

Public Chapter 1062 (HB2030/SB2190)

Effective Date 5/16/2016

The Tennessee General Assembly recently passed legislation clarifying that the right to communicate, visit, or interact with other persons, including the right to receive visitors, telephone calls, or personal mail, are among the rights that can be removed from a ward and transferred to a guardian or conservator. Tenn. Code Ann. § 34-3-107(a)(2)(P). However, certain persons, including any person designated to be conservator in a writing signed by the person with a disability and/or the spouse, child, or closest relatives of the person with a disability, may petition the court to require the conservator to grant the petitioner the right to communicate with the ward through visits, telephone calls, or personal mail. Tenn. Code Ann. § 34-3-108(f). The prevailing party on such a petition is entitled to court costs and reasonable attorney fees. Id. Finally, if a ward is unable to express consent to communication, visitation or interaction with a person as a result of a physical or mental condition, the ward’s consent may be presumed based on the ward’s prior relationship history with the person seeking to communicate, visit, or otherwise interact with the ward. Tenn. Code Ann. § 34-3-107(c).

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Increase in Amount Financial Institutions Can Pay Out Without Probate Proceedings and Amount Life Insurance Companies Can Pay Out With Minimal Documentation

Public Chapter 804 (HB1894/SB1972)

Effective Date 4/14/2016

The Tennessee Legislature has increased the amount that financial institutions can pay out without formal probate proceedings or small estate proceedings. Financial institutions and associations may now pay out all accounts of certain deceased and checks payable to certain decedents or their estates, creditors, relatives, and representatives as long as the sums do not exceed $10,000.00 in the aggregate. In addition, the maximum amount life insurance companies can pay out with minimal documentation has been increased from $7,500 to $15,000. Where the life insurance proceeds to be paid out equal $15,000 or less, a photocopy of a certificate of death along with certain statements is all that is required to show proof of death.

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