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Procedural Information for Personal Representatives (i.e. Executors and Administrators)

Posted by attorney Jacob Nemer

Procedural Information for Personal Representatives(i.e., Executors and Administrators) Serving in the Davidson County Seventh Circuit Court (Probate Division)

This procedural information guide is provided to you only as a courtesy of the Probate Court Clerk’s Office of Davidson County as they are not required to furnish you with any information concerning the administration of a decedent’s estate. This information packet should not be used as a guide for administering an estate in another county in Tennessee as their probate procedures may be different than those practiced in this Court.

The information provided in this guide pertains to procedural matters affecting this office only.

As personal representative you should immediately discuss the statutory procedures and responsibilities regarding the administration of this estate with your attorney. If you feel you may have difficulties performing your duties, you should let your attorney know this information immediately. Do not delay in notifying your attorney of any problems or concerns as this may result in very serious consequences. You should never contact the Clerk’s office to discuss any legal matters involving this estate. As much as the Clerk’s Office would like to help you, they are not allowed to do so. For any legal information, you should always consult your attorney.

Your attorney represents your interests as personal representative and is considered by the Court to be the attorney of record for this estate. This arrangement continues until the estate is closed, the attorney withdraws or is substituted.

Your attorney will make prior arrangements for you to either personally appear in open Court before either the Judge or the Probate Master. You should understand that the Court should be convinced that your appointment as Personal Representative is proper, therefore, it is imperative that you meet with your attorney before any such hearings are conducted to discuss your duties and responsibilities. If it is determined by the Judge or the Master that you are not a fit and proper individual for the task of administering an estate, you may not be allowed to serve.

Opening the Estate Administration

After the proper pleadings are filed with the Clerk and all interested parties have been notified, a hearing is conducted before either the Judge or the Master to formally appoint you as the Personal Representative for the estate. Once the hearing is completed, you will take your Oath that you will properly perform your duties as the personal representative of this estate to the best of your ability and the Clerk’s Office will issue you Letters of Authority, also known as either Letters Testamentary or Letters of Administration.

As personal representative of the estate, you and your attorney will be required to execute a Cost Bond in order to ensure the payment of any court costs which might accrue during the course of the administration of the estate. Initial filing fees will be paid at the time of filing. Any accrued court costs are expected to be paid annually if the estate remains open after one year and any remaining court costs will be paid at the end of the estate administration.

Once you are appointed, you may need to establish an estate bank account with a financial institution which either returns the original cancelled checks to you or provides you with imaged copies of the checks. The imaged versions which banks now provide with the monthly statements may be used in lieu of the original checks. If your financial institution cannot provide you with either the cancelled checks or imaged copies, it will be necessary to go to another. Never use Cashier’s Checks to conduct estate business.

Even though the Local Rules of Court in Davidson County require prior Notice of any hearing, within sixty (60) days you must execute and file an Affidavit pursuant to T.C.A. 30-2-301(b) with the Clerk. For your convenience, a form Affidavit for this purpose is posted in the “Forms" section of the probate web page or it may be obtained in person from the Clerk’s Office. Be sure to include the specific names and addresses of the beneficiaries on the affidavit form even if you have to use additional pages.

Also within sixty (60) days you must file an Inventory of the estate’s assets pursuant to T.C.A. 30-2-301(a), unless the filing of the Inventory is waived by the Will or all of the residuary distributees or legatees agree to waive the filing of the Inventory by a written statement to the Court. The Clerk will mail a Notice to you if this duty is not performed in accordance with the statute. For your convenience, an Inventory form is posted in the Forms section of the probate web page or it may be obtained in person from the Clerk’s Office. A copy of the Inventory must be forwarded to all interested parties of the estate and a Certificate of Service should be attached to it. Even though the filing of the Inventory may be waived, you should still prepare and maintain an accurate Inventory in the event one is ever requested. An Inventory is required to determine tax liability. Consult your attorney for information regarding the Inventory.

Once an estate is opened, the law requires that the estate publish for creditors. The Clerk’s Office handles this transaction for you and an additional separate check, made payable directly to the paper is required at that time. The Clerk’s Office will mail you and your attorney a copy of the “Notice to Creditors" in approximately four (4) weeks. Pursuant to T.C.A. 30-2-306(e) a copy of the Notice must be mailed or delivered to all known (actual) creditors or any creditors who are reasonably ascertainable, otherwise, legal problems may develop.

A Certificate of Service is required by this Court on all documents filed in the Clerk’s Office which certifies that a copy of the document has been either mailed or delivered to all the interested parties of the estate. Not having a certificate of service attached will result in documents not being approved for recording. Further, the Clerk may refuse to accept documents without a certificate of service.

Your attorney or accountant may need to file an Inheritance Tax Form on behalf of this estate with the Tennessee Department of Revenue. Pursuant to T.C.A. 67-8-420(a), a copy of the tax receipt or certificate may need to be filed with the Clerk indicating that all inheritance taxes have been paid or that no inheritance taxes are due. “Short-form" inheritance tax forms are available in the Probate Clerk’s office. The Department of Revenue’s mailing address is at the top of the form and they will return the receipt to you by mail. Additional tax forms may be obtained by calling the forms division of the Tennessee Department of Revenue or by accessing their website. The Clerk is not authorized to answer any questions relating to this form, we merely provide it to you as a courtesy. Please consult your attorney for information regarding this form and whether or not it must be filed with the Tennessee Department of Revenue. We do not provide Form SS-4 to file for the Federal Estate Taxpayer Identification Number (EIN).

If certain statutory requirements are met, the Personal Representative of the estate, pursuant to T.C.A. 67-8-409(g), may file an Inheritance Tax Affidavit with the Clerk’s Office in lieu of obtaining a Release from the Tennessee Department of Revenue.

If the estate remains open over fifteen (15) months, Annual Accountings must be filed with the Clerk, unless the Will waives the filing of an Accounting or all the residual distributees or legatees agree to waive the filing of the Accountings by a statement to the Court. A copy of all Annual Accountings must be mailed or delivered to all interested parties of the estate and a Certificate of Service must be attached to it. If you fail to file the Accounting, you will be sent a Notice to remind you that an Accounting (and/or Status Report) is due. If an Accounting is still not filed, you will be summoned to appear before the Clerk. Further, if you do not appear, the Court will issue an Order for Show Cause. You should consult your attorney when filing any Accounting with the Clerk.

Please do not contact the Clerk’s Office to extend the accounting period. The computerized system of case monitoring does not allow the Clerk’s Office to extend the accounting deadline. In order to extend the accounting period, your attorney must file a Motion with the Court and ask for a continuance.

Pursuant to a specific Order regarding case management, this Court requires an Estate Status Report (this Report is never waived) to be filed annually with the Clerk’s Office until such time that the estate is closed. Essentially, it is due whenever an Accounting is due to be filed, even though Annual Accountings may be waived. The Status Report should specifically detail why the estate remains open, what remains to be completed before the estate is closed and how long it will take to close the estate. You should contact your attorney when the time for the filing of the Status Report is approaching, which is the anniversary date of your appointment as personal.

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Jacob “Jake" Nemer founded Nemer Law LLC in 2011 after serving as an associate attorney at the Law Office of Martin Sir and Associates where he focused his practice around personal injury and medical malpractice cases. Mr. Nemer is devoted to providing top quality representation in the areas of probate, trust and estates, commercial law, family law, and tort litigation.

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