Monday, December 7, 2009

Executor’s Duty to Collect Assets: Ware v. McKeithan

Ware v. McKeithan
No. M2008-01332-COA-R9-CV; 2009 Tenn. App. LEXIS 302

In Ware, the Court of Appeals reversed the Probate Court’s allowance of a beneficiary’s intervention in the estate administrator’s suit to recover estate assets misappropriated by a third party. The Court of Appeals held that so long as a beneficiary’s interest is adequately represented by the administrator of a decedent’s estate, intervention is not permissible. The Court of Appeal’s further held that an administrator of an estate has the exclusive right and duty to pursue the recovery of misappropriated assets and the discretion to determine which claims are to be pursued and to what extent they should be pursued. It is important for the beneficiary of an estate to timely inquire as to the personal representative's intent to pursue (or not pursue) recovery of allegedly misappropriated funds. If the personal representative elects not to pursue recovery, over the objection of the beneficiary, the beneficiary has the option of seeking removal of the personal representative.

Attorney’s Fees: In re Estate of Arthur

In re Estate of Arthur
302 S.W.3d 284 (Tenn. Ct. App. 2009)

In Arthur, the Court of Appeals affirmed the Probate Court’s ruling and held that the Probate Court has authority to award an attorney’s lien against an executor in his or her personal capacity. The executor, in his personal capacity, argued that the probate court did not have jurisdiction to hear a dispute over a personal debt of the executor of the Estate. However, relying on T.C.A. § 16-16-107, the Court of Appeals held that the Probate Court has jurisdiction to grant a lien for attorney’s fees where the money or property that is the subject of the lien is within the control of the Probate Court.