Hamilton Herald Masthead


Front Page - Friday, April 21, 2023

Due process in Tennessee probate? Not for everyone

“Notice” and “opportunity to be heard” have, historically, been considered constitutionally protected rights. Procedural due process is enshrined in the fifth and 14th amendments to the U.S. Constitution and in Article 1 § 8 of the Tennessee Constitution.

As noted by the Tennessee Supreme Court, “The most fundamental element of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Notice must be reasonably calculated under all the circumstances, to appraise interested parties of the claims against them.” (See Moss v. Shelby County Civil Service Merit Board, 597 S.W.3d 823, 831 (Tenn. 2020)).

Perhaps at first glance it would seem a simple process and easy to apply. If you have a “stake” in a matter in court, you should receive some kind of notice of when and what is going on in that case. In addition, you should also have the opportunity to be heard in the case, since it is your “stake” in the case that is impacted by the outcome.

In the administration of estates in Tennessee, however, the right to be heard might exist, but the “notice” obligation is arguably and, perhaps, constitutionally, inadequate. The sole exception is the personal representative (commonly referred to as the “executor” in a testate estate or the “administrator” in an intestate estate).

By way of basic background, when a person dies, she might have certain stuff and she might have certain persons it should go to. The legal process of getting the stuff transferred is called probate. If she dies after having made a will, it is considered a “testate” estate. If she died without a will, it is considered an “intestate” estate.

If you are one of the persons that should receive the stuff from the deceased, then you are an heir (if intestate) or a beneficiary (if testate).

In addition to her stuff, a decedent might also have owed certain debts at the time she died. A person attempting to recover a debt from the now deceased person is called a creditor and a creditor must file a “claim” against the decedent’s estate if they want to get paid. (T.C.A §30-2-306 and 307). There is a specific manner and time in which claims against the estate must be filed.

The critical problem in Tennessee probate is not the right to be heard. The law specifically identifies that when a claim is filed, the personal representative, heirs, beneficiaries and creditors all have the right to object to the claim (called an “exception”) and to be heard (T.C.A. §30-2-314).

In fact, a person that files an exception to a claim might even have their objection/exception heard by a jury. (T.C.A. §30-2-313(d)).

The problem in Tennessee probate arises with the “notice” issue. Specifically, if you have an interest in the estate as either an heir, beneficiary, creditor “or otherwise,” and you feel a claim made by a creditor should not be paid, you’re simply out of luck.

Your concerns might be due to the delay in the filing of the claim or other procedural deficiencies. Your objection might be that the claim is unfounded or invalid or even that the claim is exaggerated. These are all legitimate reasons to object.

However, while you have the right to file an exception and the right to be heard, there’s no obligation on anyone to give you notice that a claim was filed in the first place. How can you know to file an exception to a claim if you have no idea (let alone “notice”) that a claim has been filed? The short answer is you can’t.

Tennessee’s “notice” law relating to probate is contained in T.C.A. §30-2-313. The only time anyone other than the personal representative receives notice of the filing of a claim is when the personal representative himself is the one filing a claim.

In that limited scenario, the personal representative must notify the “residuary beneficiaries” of their claim by sending each of them a copy of it. For all other claims, the heirs, beneficiaries, other creditors and other persons are left in the dark. They get, literally, nothing in terms of notice of the claim.

As a result, the claim, valid or not, gets paid and the “stake” of the beneficiaries, heirs and other creditors in the estate is reduced or even eliminated. If that seems inherently wrong, simply stated, it is.

So as an heir, beneficiary or creditor, how is your interest protected from the defective, unfounded and/or exaggerated claims? In theory, the following protections might exist:

The personal representative may file an exception to protect your interest. This is the most frequent person to file exceptions. They are the ones that get a copy of every claim directly from the court clerk. But wait a second – aren’t they are the same person that didn’t tell you about the claim in the first place? In addition, most personal representatives are lay people, not particularly versed in the law. Do they even know what to do with a claim – good or bad – when they receive it? How might they know the basis of your objection if they don’t tell you about the claim? They might even be the one intruding on your interest or in cahoots with the claimant.

The attorney may file an exception to the claim (on behalf of the personal representative). This seems like it ought to work, but for a simple problem. The “estate” does not have an attorney, the personal representative does. You are not the attorney’s client. The attorney is hired by the personal representative. The attorney is paid by the personal representative, although they can request payment come from the estate (T.C.A. §30-2-317(a) (1). The attorney’s legal and ethical duties are focused on his client and the personal representative is the client (Tenn. Sup. Ct. Rule 8, R.P.C. 1.2). Arguably, according to In re Estate of John Burnette, 2018 WL 1413122 (Tenn. Ct. App. 2018), the attorney isn’t even under an obligation to act when he knows or should have known that the personal representative is the one absconding with the estate’s assets.

The judge may protect your interest. Unfortunately, except in extraordinary circumstances, he cannot. Once a claim is filed, the time period to file an exception is 30 days after the personal representative receives a copy of it (T.C.A. §30-2-314). If no exception is filed, the claim is to be paid within 90 days after that time (T.C.A. §30-2-319). The only time the judge will know about the claim is if it is contested or if the personal representative, by motion, requests payment of a claim before the 90 days are expired (T.C.A §30-2-318). This means that the claim has likely been paid from the assets of the estate before you or the judge know anything about it. If there is no exception, there is no hearing. If there is no hearing, the judge does not know about the claim and generally cannot do anything about it.

You can call the court clerk yourself every few days or hire your own attorney to monitor the court’s file to know when a claim is filed. In all candor, calling every few days is silly and beyond inconvenient for both you and the clerks. Having your own attorney would be great. However, having to pay your own attorney to monitor a probate file just in case someone might file a claim that you might want to object to, and just so you get what the will or the law says you ought to receive, is not reasonable and is not economically feasible for most. In addition, hiring an attorney still doesn’t solve the notice issue. You’re in the class of persons who should receive notice without additional effort or expense on your part.

As might be expected, efforts to address this due process “notice” issue were attempted this legislative session.

Sen. Todd Gardenhire and Rep. Greg Vital sponsored legislation that was simple and would have been effective (Senate Bill 811 and House Bill 1258). It provides that the personal representative would be obligated to send notice of the filing of all claims to the known heirs, beneficiaries and creditors within five days of their receipt from the court clerk.

Since the personal representative (and their attorney) are the ones that know who all the heirs, beneficiaries and creditors are and since they’re the ones who get paid to handle the administration of the estate (T.C.A. §30-2-317(a)(1)), who better?

The bill passed in the Senate. The House “rolled” it until next year. The primary articulated reason it was rolled in the House was that the law would be too much work and overly burdensome to the personal representatives and attorneys.

A little extra (paid for) work to protect constitutionally protected rights seemed reasonable, but to no avail.

Great thanks are extended to Sen. Gardenhire and Rep. Vital for their efforts to bring a simple fix to a serious constitutional problem.

Since we do not a have legislative solution to the “notice” problem, at least this year, a judicial solution might be the next step. That would not be my preference as the judge with probate jurisdiction in Hamilton County. In the interim, perhaps a twist on the old saying “buyer beware” is appropriate. For probate in Tennessee, it’s “beneficiary beware!”

Jeffrey M. Atherton

Chancellor, Part 2

11th Judicial District of

Tennessee (Hamilton County)