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jemcco1

Junior Member
What is the name of your state (only U.S. law)? Tennessee
This will be a long, drawn out post here, and I greatly appreciate anyone here who can give me some advice.
I am a divorced mother of a 20 year old son. Sadly, my ex-husband passed away suddenly this past weekend, and I am trying provide answers to my devastated son. He is his father's only child, and their relationship over the last 4 years has been rocky, due to his father's mental health and substance abuse issues. As a result, he didn't spend a great deal of time around his father because of personal safety concerns. Due to this, his father's family has turned their backs on him, and become very spiteful toward him.
They sidestepped my son's request yesterday to allow him to enter his father's residence to look for pictures, mementos, etc.
My son has no clue if there is a will, and I am sure that if he doesn't act now, he will receive nothing at all from his father's estate. I am planning to accompany him to consult an attorney in the morning. Does he stand a chance to receive any of his father's estate, or would we be wasting a great deal of money pursuing it? I know that they will very soon, if they haven't already, begin to remove items from the premises. Can this be prevented? If so, how? What happens in cases like this?
At this point, I don't have a clue what to do to provide answers for my son. Any advice would be very gratefully received. Thank you.
 


anteater

Senior Member
If there is no will, and there was no surviving spouse, and your son is the only child, then your son would be entitled to the entire estate:

If any part of a Tennessee decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate, including both separate property and the one-half of community property that belongs to the decedent. However, the amount a surviving spouse is entitled to varies as follows:

- If there is no surviving issue (e.g., child or grandchild) of decedent, the surviving spouse is entitled to the entire intestate estate.
- If there are surviving issue of the decedent, the surviving spouse is entitled to the greater of one-third or a child's share of the entire intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

- Decedent's issue. If they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by per stirpes representation. ......
If there is no will that nominates an estate executor, then someone needs to apply to open the esate and be appointed as the administrator. Other things being equal, the court would give preference to the surviving spouse and, with no surviving spouse, to the next of kin. With a quick scan of TN statutes, I could not spot an age requirement for appointment as the estate's administrator. It is likley 21, but your son will have to ask the attorney that you are consulting with. If an age requirement prevents your son from seeking appointment, you'll have to ask the attorney what the chances are that the court would appoint you. It is one of the estate administrator's duties to secure the property of the deceased.

You are quite correct in acting quickly. In theory, nobody is supposed to do anything with your ex's property until the court appoints an administrator. But you may want to prepare your son for one of the unfortunate facts in this kind of situation. If people with sticky fingers have access to your ex's personal property, it becomes difficult to retrieve anything that they may take before the administrator has a chance to secure the property. There would need to be evidence that your ex still owned the items at the time of death and that someone did, indeed, take the property.
 

jemcco1

Junior Member
Thank you so much for your quick response. My son wants two items of jewelry from his father's small collection, that hold great sentimental value for him. They are embossed with masonic emblems, so I know that the ex would not have parted with that jewelry while he was still alive. These are the small items that my son is very concerned about disappearing. I have pictures of the items (from our divorce inventory), would that help?
My concern is over the question of a will. You say if there is no will, my son would be entitled to the entire estate. What happens if there is a will, and he's excluded? It would probably not be worth the battle to litigate the estate over items that have probably already disappeared, would it? His father's estate consists of only 1 vehicle, 1 ATV (4-wheeler), the jewelry, firearms (that I know as fact have been removed from the premises), a 20K collection of tools (he was an auto mechanic), and hunting equipment. That's pretty much it- he didn't own the residence, so no fight there. I don't know that it would be worth it for my son to put himself through more hell to try to obtain things I know they can easily move and say no longer existed. But I will support him if he wants to try to fight them, because he has the right to receive at least something from his father's estate...
Again, thanks for your advice. If you can think of anything else we need to know, i would appreciate it. It's difficult to think clearly right now after all that's just happened, so everything is greatly appreciated.
 

anteater

Senior Member
If there is a will, then the estate would be distributed in accordance with the will. There is no state (except for a limited exception in Lousiana) that mandates that a child to inherit from a parent. If there is a will and it specifically excludes your son, then that is almost impossible to overcome. If a will is silent as to your son, it could be argued that your son was inadvertently overlooked. But, given that there was some ongoing relationship, even if rocky at times, I would say that is a long shot. The mental health and substance abuse issues might provide an opening if it comes to contesting a will.

Pictures might help but they aren't conclusive. The opposing side could simply argue that they have no idea if the ex still possessed them. (And, "Even if he did, we certainly did not remove them." It's tough to disprove if the property is not titled or registered in some manner.)

If it comes to a fight, your son is just going to have to make decisions about how much it is worth to him. But keep one thing in mind. If his goals are specific and limited, sometimes the simple threat of litigation will bring the other side around to making a compromise. But always maintain the appearance that you are willing to go the "scorched earth" route.
 

Dandy Don

Senior Member
Normally the will is filed in probate court within 30-60 days after the death. So check there regularly to see if the will has been filed--if so you can get a copy of it since it is public record.
 

jemcco1

Junior Member
Thank you. It was confirmed to my son yesterday by his grandparents that there is indeed a will, but he was not allowed to view it. They refused to disclose if he was even named in the will, so I suppose he will have to wait until it is presented for probate.
 

Dandy Don

Senior Member
Since your son may have a right to assets in the estate even if there is no will, you need to be talking to an attorney to find out IF it would be to his advantage to open up probate now or wait for the family to do it. If they are deliberately withholding the will and do not intend to open up probate (for spiteful reasons), then your son can go ahead and do so and then judge can ask the party who has the will to produce it for court.

Do you have knowledge of what the assets in the estate would be and what the total value of the estate would be? At least talk to an attorney now (consultation only, for an hour or two) to find out your options.

DANDY DON IN OKLAHOMA ([email protected])
 

jemcco1

Junior Member
The estate is rather small, consisting of some jewelry, firearms, tools, an ATV, and a small pickup truck. We were unable to get an appointment for consult until tomorrow. I drove by the residence today and I witnessed my ex-husbands girlfriend removing a box and two sacks from the residence. So already, sticky fingers are at work, as I knew they would be. They will have everything removed before probate is even opened (I checked today, and it has not been opened yet). We have no way of proving what they removed, even though I witnessed it with my own eyes today. It is difficult to decide how to handle, as I think it would be futile to spend a fortune fighting over things they say they do not have. And I doubt my testimony to what I witnessed today would stand in court.
It's too late at this point to attempt to secure the residence, as everything of value was likely removed today.
I think I should just help my son resign himself to the fact that he will receive nothing, regardless of what the will might say. These people are simply evil and he's better off moving on with his life, and leaving them behind.
 

jemcco1

Junior Member
I forgot- I know of the assets he had upon our divorce. I have pictures of the entire household, taken as part of the inventory I turned in to my attorney at the time we were divorcing. As for his liabilities, at this point, I have no way to guess. He had no liabilities at the time I moved out of the residence. My son's grandparents told him yesterday that his father had incurred quite a bit of debt, but that could have been a scare tactic or their "nice" way of encouraging him to expect nothing. I have trouble believing he went heavily into debt, as he was always very conscious of and responsible with his spending for the 15 years we were married. Doesn't mean that didn't change though....
 

jemcco1

Junior Member
We found out this morning that there was a small insurance policy still in effect (he bought it through his employer when we first married). The ins. co rep said that our son and I are the listed beneficiaries of the policy. I am hoping life insurance stays outside probate, as it will likely be the only thing our son receives from his father's estate. (I saw two family members removing items from the residence yesterday afternoon, so I assume everything of value has already been removed....) Hopefully, they will not be able to do anything about the life insurance policy.
Will I be excluded as an eligible bene due to the divorce, or do they simply pay whomever is listed? Any proceeds I receive will go toward our son's college tuition anyway...
If I am excluded as an eligible bene, will our son receive the full amount of the policy, rather than each of us getting an equal half?
 

Dandy Don

Senior Member
Divorce will not affect your status to receive life insurance (that only applies to a probated will) UNLESS he remarried and has a surviving spouse now. IF there is a surviving spouse who checks the status of the policy, the insurance company MIGHT withhold the benefit if they know that you are divorced and not the currently surviving spouse. But that is not the case here, is it? There is no surviving spouse?

No matter what happens at least your son will be getting his portion of the life insurance benefits.
 

jemcco1

Junior Member
No, neither of us remarried. You are correct, at least our son will receive something, though he would much rather have the small sentimental items belonged to his dad.
I never dreamed that my son's own family would stoop to the behavior that I have witnessed over the past week. It's so incredibly sad....
 

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