Monday, February 28, 2011

Court Reviews Ownership of Property via Adverse Possession or a Life Estate

NANCY GATES v. KATIE WILLIAMS ET AL. (Tenn. Ct. App. February 28, 2011)

As this action was pleaded and tried, it was:
(1) a claim by Nancy Gates ("the plaintiff") seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams ("the defendant"), the widow of the plaintiff's son, Tony, from the property; and
(2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s.

The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff's permission.

The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff's knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court's judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/gatesn_022811.pdf

Sunday, February 27, 2011

Adams Law Firm's Estate Planning Services

The Adams Law Firm offers a standard Estate Plan, which includes the following documents:
 
1. Last Will and Testament
2. Living Will (containing advanced medical directives)
3. Power of Attorney for Healthcare (which operates in conjunction with the Living Will)
4. Power of Attorney for finances and other matters
 
We are also able to provide advanced estate planning services such as living trusts, Asset Protection Trusts, and Irrevocable Life Insurance Trusts.  Our charges for these services depend on the time required and complexity of the circumstances.  Start by filling out our Estate Planning Worksheets, which we can mail, fax, or email upon request.  Any information you provide will be strictly confidential.

Saturday, February 26, 2011

Tennessee Residents are Impacted from an Estate Planning Perspective

As you may already know, on December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the "Act") which significantly changes the federal estate tax and gift tax. The estate and gift tax provisions of the Act are generally favorable to taxpayers, but the Act is only temporary and will expire December 31, 2012 if Congress fails to act. As a service to our professional partners we have prepared the following summary of the Act’s key changes and how the Act impacts Tennessee residents from an estate planning perspective.
 
$5 Million Federal Exclusion Amount; 35% Tax Rate.
The Act reinstates the federal estate tax and sets the exemption at $5 million and the tax rate at 35% for decedents dying in 2011 and 2012. However, if Congress allows the Act to expire on December 31, 2012, the prior estate tax regime, with a 55% maximum estate tax rate and a $1 million applicable exclusion amount, will be reinstated at that time. The State of Tennessee still maintains a separate inheritance tax regime with an exemption for the first $1 million of assets. To help minimize Tennessee inheritance tax exposure, we are continuing to advise our clients about the advantages of credit shelter trusts.
 
Portability.
The Act also provides for "portability" between spouses, meaning any exemption amount not used by a predeceased spouse may be added to the exemption amount for the surviving spouse. If Congress fails to extend the Act, both spouses must die in 2011-2012 to take advantage of portability. Additionally, if a surviving spouse remarries, portability of the predeceased spouse’s unused exemption is lost. Given these limitations and the fact that Tennessee does not recognize portability for Tennessee inheritance tax purposes, we are continuing to advise many clients to use estate plans that incorporate credit shelter trusts.
 
Gift Taxes.
Under the Act the estate and gift tax regimes are re-unified allowing individuals to be able to use the full $5 million exemption to make lifetime gifts without any federal gift taxes. For lifetime gifts exceeding $5 million made in 2011 and 2012, the federal gift tax rate is 35%. Tennessee still has a gift tax and Tennessee does not have a lifetime exemption. Therefore, Tennessee gift tax consideration must be well thought out before gifting property in excess of the annual exclusion amounts. For 2011, the annual gift exclusion amount under both federal and state law remains at $13,000 per Class A donee (married couples may continue to "split" their gift and may make combined gifts of $26,000 to each Class A donee). "Class A donees" are a donor’s spouse, lineal descendent, lineal ancestor, sibling, son-in-law, daughter-in-law, step-child, and niece and nephew if the donor has no lineal descendents. "Class B donees" are all other persons.
 
Generation Skipping Transfer ("GST") Tax.
The Act provides a $5 million GST tax exemption and GST tax rate of 35% for 2011 and 2012. The Act also extends certain technical provisions under prior law affecting the GST tax. 



Source: Gullett Sanford Robinson & Martin PLLC

Thursday, February 17, 2011

Court Reviews a Fraudulent Will Case

JUDY DOTSON MCCONNELL, ET AL. v. PAT FULLER, ET AL. (Tenn. Ct. App. February 15, 2011)

In September of 2009, Judy Dotson McConnell and Jerry Dotson ("Plaintiffs") sued Pat Fuller, John Fuller, and Lela Dotson Gravett ("Defendants") alleging, in relevant part, that the Last Will and Testament of Clarence E. Dotson, which was offered for probate in May of 2003, was a fraudulent will. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted alleging that the statute of limitations barred Plaintiffs' claim.

After a hearing, the Trial Court entered its order on February 16, 2010 finding and holding, inter alia, that Plaintiffs' lawsuit was not filed within the statute of limitations and that Plaintiffs failed to "allege facts which would bring into play fraudulent concealment," which would have tolled the statute of limitations. The Trial Court dismissed Plaintiffs' suit. Plaintiffs appeal to this Court. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/mcconnellj_021511.pdf

Saturday, February 12, 2011

TN Supreme Court Reviews Wrongful Death and Negligence Claims Brought by Administratrix

ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL. (Tenn. January 26, 2011)

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.

The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages.

The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.

We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf

Friday, February 11, 2011

Court Reviews Whether the Bureau of TennCare Could Recover the Cost of Medical Assistance Provided to the Decedent

IN RE: ESTATE OF ARDELL HAMILTON TRIGG, DECEASED (Tenn. Ct. App. February 11, 2011)

The Bureau of TennCare filed a claim against a decedent's estate to recover the cost of medical assistance provided to the decedent. The Estate filed an exception to the claim. The probate court sustained the claim, and the Estate appealed the probate court's ruling to the circuit court which heard the matter de novo. The circuit court reversed the probate court and disallowed the claim of TennCare.

TennCare appeals; we hold that the circuit court was without subject matter jurisdiction to review the probate court's order. We vacate the judgment of the circuit court and remand the case.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/trigga_021111.pdf

Wednesday, February 9, 2011

Court Reviews Whether Beneficiary of a Trust is Entitled to Distributions Prior to His Parents’ Deaths

RYNE W. BROWN v. CATHERINE L. BROWN, Trustee, ET AL. (Tenn. Ct. App. February 9, 2011)

Appellant contends that he is a beneficiary of a trust created by his parents and thus entitled to distributions of principal and income. In a declaratory judgment action, the trial court determined that Appellant was not entitled to mandatory distributions of income or principal until both of his parents were deceased. We affirm this portion of the trial court's judgment. The trial court also determined that no corporate trustee was required. We reverse this portion of the trial court's judgment and remand for the appointment of a corporate trustee.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/brownr_020911.pdf