Amends TCA Section 8-21-401; Section 30-4-103; Section 30-4-104 and Section 30-4-101.

This bill revises present law provisions governing small estates, as discussed below. AFFIDAVIT, FEES, BOND and DISCHARGE (1) Under present law, after the expiration of 45 days from the date of decedent's death, provided no petition for the appointment of a personal representative of the decedent has been filed in that period of time and decedent's estate is a small estate within the meaning of the present law small estates provisions, one or more of decedent's competent, adult legatees or devisees or personal representatives named in the decedent's will, if a will was left, or heirs or next of kin, if no will was left, or in either a testate or intestate estate, any creditor proving that creditor's debt on oath before the court, must file with the clerk of the court an affidavit setting forth the following facts: (A) Whether or not decedent left a will, and if so, the original must be presented to the court for examination by the clerk. The original will has not been proven and therefore cannot be recorded. A copy of the original will must be filed to support the affidavit. The original will must be deposited with the court for safekeeping; (B) A list of unpaid debts left by decedent and the name and address of each creditor and the amount due that creditor; (C) An itemized description and the value of all of decedent's property, the names and addresses of all persons known to have possession of any of decedent's property, and a schedule of all insurance on decedent's life payable to the decedent's estate; (D) The name, age, address and relationship, if any, of each devisee, legatee or heir entitled to receive any of decedent's property. For purposes of the above provisions, this bill requires that the decedent's death be evidenced by the death certificate and that a copy of the death certificate be filed, along with the affidavit, with the clerk of the court. Under this bill, only the decedent's competent adult heirs or next of kin or any creditor proving the creditor's debt may file the affidavit with the clerk of the court. This bill also replaces item (A) above with "that the decedent left no will", deletes item (B) above, clarifies in item (C) above that such names and descriptions are required for the decedent's personal property, and revises item (D) above to provide that age is required if the heir is a minor and that the item (D) applies to each heir entitled to receive any of the decedent's personal property, all of whom the affiant must notify of the filing of the affidavit by mailing a copy to their last known address, postage prepaid. (2) Under present law, the form of the affidavit must disclose that the affiant evidences by signature that, subject to the penalty for perjury, the affidavit is not false or misleading and that the affiant is mindful of all duties imposed upon the affiant by the small estates provision in present law. This bill provides that the affidavit may be obtained from the clerk, if available. This bill requires that the affidavit also disclose that the affiant is not disqualified from serving because of having been sentenced to imprisonment in a penitentiary as provided in the present law provision regarding disqualification from fiduciary office as effect of a sentence of imprisonment. (3) Under present law, a competent adult who is not a legatee or devisee or personal representative named in the decedent's will, or an heir or next of kin of the deceased, may be appointed as the affiant for a small estate by the court, if all competent adult legatees or devisees or personal representatives named in the decedent's will, if a will was left, or heirs or next of kin, if no will was left, consent in writing to the appointment of the competent adult as the affiant; provided, that any person who is appointed as an affiant pursuant to these provisions must comply with all other provisions of this section, including the bond provisions discussed below. The consent cannot be required of any personal representative who is named in the decedent's will and who has renounced the appointment, in order for the court to appoint an affiant for a small estate. This bill deletes the provision above and instead provides that a competent adult who is not an heir or next of kin of the deceased is allowed to file for a small estate limited letter of authority by the court if: all competent adult heirs or next of kin consent in writing to the filing of the affidavit and the person who is filling the affidavit complies with all other provisions, including the bond provisions discussed below. (4) Under present law, the clerk must deliver to the affiant as many certified copies of the affidavit as are requested, onto which are affixed a clerk's stamp and seal certifying that the affidavit has been filed in the office of the probate court. An affidavit may be amended to the extent that the aggregate amount does not exceed the statutory limitation. Under this bill, the clerk must deliver one certified copy to the affiant. This bill adds that additional certified copies of the affidavit may be requested by the affiant at the time of filing the affidavit, or at any time prior to the affiant's discharge from liability as discussed below. This bill specifies that the aggregate referenced above may not exceed the statutory small estate limitation. (5) Under present law, the clerk charges fees for processing a small estate as authorized and provided in the present law provisions regarding schedule of fees and deposits of a will with the probate court. This bill adds that such fees also apply for processing additional certified copies. (6) Under present law, the affiant must make bond payable to the state for the benefit of those entitled with two or more sufficient sureties or one corporate surety. The amount of the bond must equal the value of the decedent's estate to be administered under the present law small estates provisions. However, bond cannot be required of the affiant if the present law provision providing when bond is required would not require such from a personal representative. Under this bill, the affiant must make bond payable to the state for the benefit of those entitled with a corporate surety and the bond will not be required of the affiant if: the affiant or affiants are the sole heirs of the decedent or all adult heirs consent in writing. (7) Under present law, the affiant and the sureties on the affiant's bond may obtain discharge from liability under the bond in either of two ways: (A) The court may enter an order discharging the affiant and the sureties on the affiant's bond after the affiant files: an affidavit that each debt of the decedent is paid; and for a decedent dying before January 1, 2016, either the tax receipt issued pursuant to the present law provision regarding receipts and certificates of payment for inheritance tax administration, or the certificate issued pursuant to the present law provision regarding return and inventory of estate for inheritance tax administration; or (B) The affiant and the sureties on the affiant's bond may wait until the first anniversary of the filing of the affidavit when the court must automatically discharge them from liability. This bill removes the requirements that an affidavit that each debt of the decedent is paid be filed from item (A) above. This bill adds to item (B) above that the small estate affidavit limited letter of authority must remain open and active until the first anniversary to allow for amendments or conversions to the original affidavit limited letter of authority. This bill also prohibits the issuance of formal letters and prohibits allowing creditors to file a claim in a small estate proceeding. ADMINISTRATION BY AFFIANT (1) Under present law, every person indebted to decedent's estate, or having possession of any property belonging to the estate, or acting as registrar or transfer agent of any shares of stock, bonds, notes or other evidence of ownership, indebtedness, property or right belonging to decedent's estate must be furnished a copy of the affidavit by the affiant, duly certified to by the clerk of the court, and upon receipt of the copy of affidavit, and upon demand of the affiant, must pay, transfer and deliver to affiant all indebtedness owing by and other property in possession of or subject to registration and/or transfer by, the person to whom the copy of affidavit has been delivered. This bill clarifies that provision above applies to a person indebted to decedent's estate who have possession of any personal property belonging to the estate. This bill also clarifies upon receipt of the copy of the affidavit and demand by the affiant, each person furnished with a copy of the affidavit must pay, transfer, or deliver to the affiant all indebtedness owing by the recipient and other property in possession of or subject to registration or transfer by the recipient. (2) Under present law, every person making payment, transfer or delivery of property belonging to a decedent's estate to the affiant must be released and discharged from all further liability to the estate and its creditors to the same extent as if the payment, transfer or delivery were made to the duly appointed, qualified and acting personal representative of the decedent, and the person making the payment, transfer or delivery may not be required to see to its application or to inquire into the truth or completeness of any statement in the affidavit. This bill revises the provision above to apply to personal property belonging to a decedent. (3) Under present law, if the decedent left a will, the decedent's property must be distributed as provided in the will, and if the decedent left no will it must go to the decedent's heirs as provided by law in case of other intestacies, and both the affiant and the person to whom payment, transfer or delivery of any property is made by the affiant must be and remain liable, to the extent of the value of the property so received, to unpaid creditors of the decedent and to every other person having a prior claim against the decedent's estate or prior right to any of the decedent's property, and also must be accountable to any personal representative of the decedent thereafter appointed. This bill revises the provision above to provide that the decedent's personal property must be distributed to the decedent's heirs as provided by law. The person whom payment, transfer, or delivery of any personal property is made by the affiant will be liable and remain liable, to the extent of the value of the personal property received, to unpaid creditors of the decedent or to anyone who had a prior right to the decedent's personal property. (4) Under present law, for a decedent dying before January 1, 2016, the affiant must file returns and pay the tax on property in the decedent's estate, as required by the present law provisions regarding inheritance tax administration and disputed domicile. This bill deletes this provision in its entirety. (5) Under present law, if any person having possession of any of the decedent's property, upon receipt of a copy of the affidavit certified by the clerk, refuses to pay, transfer or deliver the property to or at the direction of the affiant, the property may be recovered or transfer and delivery of the property compelled in an action brought in any court of competent jurisdiction for that purpose upon proof of the facts required to be stated in the affidavit, and costs of the proceeding must be adjudged against a person wrongfully refusing to pay, transfer or deliver the property. This bill revises the provision above to apply to the decedent's personal property. This bill also adds that if, during the administration of the small estate affidavit, the affiant discovers additional assets that exceed the statutory small estate limitation, then the court may allow the small estate affidavit to be converted into an intestate common form probate by application of the affiant to the court. The affiant is liable for the assets which may have been disposed of under the small estate affidavit prior to the conversion to an intestate common form probate. FEE PROVISIONS Under present law, the clerks of the various courts administering estates, guardianships, conservatorships, and other probate matters are entitled to certain fees, including: (1) For opening and closing an estate, other than a small estate, including giving notice of the opening of the estate to the department of revenue, $230; and (2) For filing small estate affidavits and giving notice of the opening of the estate to the department of revenue, $41.00. This bill removes "giving notice of the opening of the estate to the department of revenue" from items (1) and (2) above. ON APRIL 12, 2021, THE HOUSE ADOPTED AMENDMENT #1 AND PASSED HOUSE BILL 1362, AS AMENDED. AMENDMENT #1 revises various provisions of this bill, as follows: (1) In regard to the affidavit described above in the bill summary in (1), removes the proviso that the estate be a small estate and revises the information to be set forth, as follows: (A) Revises the will provision to required that the affidavit set forth that the decedent left "no will requiring administration" instead of "not will"; (B) Adds that the affidavit must set forth that the decedent had no interest in real property; and (C) Retains the present law requirement that the affidavit include a list of unpaid debts left by the decedent and the name and address of creditors and amounts due; (2) In regard to the affiant disclosing that the affiant is not disqualified from serving because of having been sentenced to imprisonment in a penitentiary as provided in the present law provision regarding disqualification from fiduciary office as effect of a sentence of imprisonment, this amendment adds "or otherwise" and adds that the affiant must disclose that the affiant is willing to preserve all personal property of the decedent and cancel all insurance policies that are no longer applicable due to the decedent's death; (3) In regard to this bill's provision whereby formal letters will not be issued, this amendment revises the provision to instead provide that formal letters testamentary or letters of administration will not be issued; (5) In regard to the distribution of property as described above in (3) of the bill summary under "Administration By Affiant," this amendment adds that the person receiving property will also be liable to any personal representative of the decedent thereafter appointed. This amendment also adds that if distribution is made prior to payment of all medical assistance owed to TennCare, both the affiant and the person to whom payment, transfer, or delivery of property is made by the affiant will be liable to TennCare and remain liable, to the extent of the value of the personal property received; and (6) In regard to the provision regarding the discovery of additional assets that exceed the statutory small estate limitation, this amendment adds that the provision applies to a creditor, in addition to the affiant, who discovers such additional assets and provides for conversion into "probate administration" instead of "an intestate common form" upon application "of a verified petition as provided in present law". ON FEBRUARY 24, 2022, THE SENATE SUBSTITUTED HOUSE BILL 1362 FOR SENATE BILL 888, ADOPTED AMENDMENT #1, AND PASSED HOUSE BILL 1362, AS AMENDED. AMENDMENT #1 incorporates the changes made by House Amendment #1, deletes the provision that states a clerk or assistant is not liable as a result of services rendered to the affiant in good faith in completing the small estate affidavit based upon information furnished by the affiant, and changes this bill's effective date to July 1, 2022.