Probate, trust, guardianship and inheritance litigation
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Who Can Serve As Personal Representative Of a Tennessee Estate?

In Tennessee, a decedent can name someone of their choosing to serve as personal representative of his or her estate by naming the person in their will.  The personal representative should not be a minor or incompetent to serve.

If the decedent does not name a personal representative or have a valid Tennessee will (the person dies intestate), then Tennessee law will govern the order of priority for who can serve as personal representative of the estate.

Who Has Priority To Serve as Personal Representative Under Tennessee Law?

Section 30-1-106 of the Tennessee Code outlines the priority of persons who can serve as personal representative of an intestate Tennessee estate and states:

When any person dies intestate in this state, administration shall be granted to the spouse of that person, if the spouse makes application for administration. For want of application for administration upon the part of the spouse, the administration shall be granted to the next of kin, if such next of kin apply for it. If neither the spouse nor next of kin make application for administration, then administration shall be granted to a creditor proving the decedent’s debt on oath before the probate court; provided, that when there is more than one next of kin, the probate court may decide which of the kin shall be entitled to the administration.

Therefore, the order of priority for service as personal representative in an intestate Tennessee estate is:

  1. Surviving spouse
  2. Next of Kin
  3. Creditors

Who Cannot Serve As a Personal Representative In Tennessee?

A person cannot serve as personal representative or administrator of a Tennessee estate if they have been sentenced to imprisonment in a penitentiary as set forth in § 40-20-115 or otherwise.

The personal representative must swear an oath that all of the statements made in petition for appointment are true and accurate and that the representative is not disqualified from serving because of having been sentenced to imprisonment in a penitentiary.  See Tenn. Code § 30-1-111.

What Are the Duties Of a Personal Representative In Tennessee?

In McFarlin v. McFarlin, the Court discussed the role of an executor in Tennessee, stating:

The legal standards against which Mr. McFarlin’s performance as executor should be measured are well understood. He occupies a fiduciary position, Mason v. Pearson, 668 S.W.2d 656, 663 (Tenn. Ct. App. 1984), and must deal with the estate and each of its beneficiaries in the utmost good faith. Baker v. Baker, 24 Tenn. App. 220, 240, 142 S.W.2d 737, 750 (1940). Like any other fiduciary, he is required to exercise the same degree of diligence and caution that reasonably prudent business persons *370 would employ in the management of their own affairs. In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct. App. 1979); In re Estate of Cuneo, 63 Tenn. App. 507, 515, 475 S.W.2d 672, 676 (1971); 2 H. Phillips & J. Robinson, Pritchard on Wills and Administration of Estates § 715 (4th ed. 1984) (hereinafter “Pritchard”).

The law favors the prompt administration of estates. Burris v. McConnell, 187 Tenn. 489, 496, 216 S.W.2d 10, 12 (1949). Accordingly, an executor has a duty to marshal and collect the estate’s assets within a reasonable time. Campbell v. Miller, 562 S.W.2d 827, 832 (Tenn. Ct. App. 1977); Price v. Price, 37 Tenn. App. 690, 694-95, 269 S.W.2d 920, 922 (1954); Pritchard § 716. An executor must also discharge its statutory obligations in a timely manner. See Williams v. Thornton, 160 Tenn. 229, 234, 22 S.W.2d 1041, 1042 (1930); Love v. First Nat’l Bank, 646 S.W.2d 163, 166 (Tenn. Ct. App. 1982); State ex rel. Burrow v. Cothron, 21 Tenn. App. 519, 529-30, 113 S.W.2d 81, 87 (1937). Finally, an executor must distribute the estate in a timely manner and close its administration as quickly as possible. Pritchard § 718.

Can a Nonresident Serve As Executor In Tennessee?

Yes.  In Tennessee, a nonresident can serve as your executor or personal representative.  However, an in-state coexecutor must be named, and the nonresident also must appoint the secretary of state as agent to accept legal papers.  See Tenn. Code § 35-50-107.  Most of the time it is simply easier to appoint someone who is a Tennessee resident to serve as your personal representative.  A resident who lived near the decedent has easier access to the Decedent’s assets, and can work closely with the Tennessee probate lawyer who is guiding the administration of the estate.

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