Free Crop woman tapping shoulder and comforting upset female friend while sitting at home together Stock Photo

Intestate Probate – How estates are settled without a will

by Probate
Free Crop woman tapping shoulder and comforting upset female friend while sitting at home together Stock Photo

Probate Proceedings

Probate proceedings and Probate court are a special, separate type of law that oversees validating the Will of a deceased person, and dispersing their assets according to their wishes. However, sometimes, there are too many tragic accidents, and that can’t happen. Though probate is a separate division of law, it is not any harder or easier than another. The difficulty of a probate case is measured by the size of the estate, meaning the more assets and debts there are to account for, the longer the process will take. Most probate cases are anywhere from 6 months to 2 years, and can be even longer if the estate is larger. Contesting a probate case, or having someone contest yours, can elongate the process as well. In every probate process there are always the same general steps:

  • Proving the will in probate court, if there is one
  • Making a comprehensive inventory of all the decedent’s properties, assets, and debts
  • Dividing and distributing assets leftover after amortization to the family or heirs-at-law

No matter the type of probate, the size of the estate, every probate case follows the same general guidelines. In Testate probate, it’s much easier to follow this routine, as a Will provides a strict rule to follow. In Intestate probate however, the story is just slightly different.

Intestacy Probate

In Intestacy Probate, there is no will, so the first step, proving a valid will, is out. Instead, there will be a hearing with the court where the administrator of the estate will be named and officialized. This hearing is equivalent to a hearing in a Testate probate case where the will is validated and the executor is officialized. In both cases, the executor and administrator must pay off any outstanding debts, This can be done with inherited assets, by selling off properties, or out of pocket. In Intestate probate, because there is no will of wishes to follow after death, estate division is in accordance with Tennessee statute §31-2-101. In Intestacy the order assets would be divided and distributed is like so:

  • If the deceased had a spouse or children, the assets would first go to them. If a spouse and no children, the spouse would inherit 100% of the assets and properties. If there is a spouse and a child, the estate would be divided evenly among the two. If you have a spouse and 2 or more kids, the surviving spouse gets either ⅓ of the estate, or the children’s equal share, whichever is greater. If the decedent’s own child passed away after having a kid, the grandchild would inherit the deceased assets in place of their parents.
  • If there is neither a spouse nor a child, the estate would pass to the parents of the deceased. If the parents have already passed away themselves, it would go onto the siblings of the deceased. If they were an only child, the estate would pass back up the generational line to the grandparents.
  •  On the off-chance that everyone has passed or there is no living family in the first place, the State would look for the closest relative cousin. If even that has failed, the estate is just turned over to the State. It’s important to note that these laws must be strictly followed, and because of that, state courts don’t particularly care about something like cutting someone off or a damaged relationship. 

All this to consider, it makes you think how much easier it is to have a will. It makes it easy on your family if you pass and they have to grieve you. It may not make your life easier but it brings peace of mind knowing that if something were to happen to you, your things are safe and will go where you want them to.

Assets and Property types

It’s important to understand types of assets and properties. Some accounts and properties are not subject to probate court, whereas some or most are. Probate assets and non Probate assets are distinctly different. Probate assets are assets the Probate court will use to pay off debts and divide between your heirs. Non Probate assets are just that, assets not subject to Probate. This includes, but is not limited to;  any jointly owned property or account, any account with a named beneficiary, POD/TOD accounts, life insurance, retirement, etc. Probate assets would be the opposite, any account or property in just your name that does not have a named beneficiary. Vehicles, jewelry, even boats can also be Probated. Another important piece of information is knowing property types. Certain property types qualify as Probate and Probate assets. The three different property types are;

  • Exclusive property ownership: Exclusive property ownership is when the decedent exclusively owned the property, meaning their name was the only one on the deed.
  • Joint property ownership: Joint ownership is when two or more people share the property together, and both or all names are on the deed.
  • Trust property ownership: Trust ownership is when the decedent names a beneficiary for the property if they pass. The trustee, or the property receiver, would have trust ownership over the property.

Conclusion

There is so much more to explore in Probate, it’s’ such a niche division not many know about. The more information you have access to the less you will stumble on this journey. Dealing with probate proceedings are another weight to add to losing your loved one. That’s why our office is proud to have probate attorneys that work hard for each client, individualizing each case and experience to cater for all your needs.

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Black Handled Key on Key Hole Stock Photo

Understanding Probate – Roles and Responsibilities

by Probate
Free Black Handled Key on Key Hole Stock Photo

What is Probate Court?

Probate Court is a special court that oversees validating the will of a deceased person and dispersing their assets according to their wishes. In a probate proceeding, an appointed executor or administrator will execute the probate process. Most of the probate process does not actually take place in a courtroom, rather the executor or appointed administrator will take care of the process on their own or with counsel and officialize it in the courtroom. If the probate process does happen in a courtroom, it is usually because the will has been contested or there are debt claims from outside parties. Debt claims are settled either between the executor, or the court will give a ruling if no agreement is made. Contesting a will however, will elongate the court procedures and make the process seem like a mountain too big to climb. In this article you will learn a little about the probate process, factors that may affect the process, and other relevant information. 

What is the Probate Process?

The probate process always has 3 basic, necessary steps;

  • Validating the will, if there is one
  • Paying off any existing outstanding debts
  • Distributing the leftover assets.

If the decedent left a will, they will name the executor in it. The executor is responsible for executing the decedent’s will and carrying out the final wishes. They are responsible for filing the probate petition with the local county probate or chancery court. To file a probate petition, the executor must gather all relevant documents; last will, death certificate, letters testamentary, and notice to creditors and family members. Once submitted and reviewed, the court will schedule a hearing where all those given notice are free to view, and where other family members are given the opportunity to contest the will. If there was no will, this is where the court would appoint an administrator, usually a close family member. When the executor, or court appointed administrator has been officialized, they can start to tackle the probate procedures. First, the executor must compile a comprehensive list of all assets and debts the decedent once owned. This includes things like real properties, land, vehicles, jewelry, accounts, trusts, etc. in their name. Once that step has been taken, the executor can start to pay off any debts your loved one may have had. The debts must be claimed within 60 days after service (or notice of death), and any claimed debts must be paid off before the probate process can move on. Your family can use your assets to do so if they are unable to pay the debts out of pocket. When that is done, you can go ahead and schedule a final hearing where the court will review the presented information and assist in splitting the assets between the heirs. The executor also bears the responsibility of providing the court a final accounting that details any and all transactions made by the executor.The Court will finalize everything and your petition will have its Final Approval. One less thing to worry about during this hard time.

Wills

The existence of a will is crucial in probate cases. If there is one, it must be proven to be both the decedent’s and valid. Families can contest the execution of a will, the validity of a will, they can also contest the named executor in the will and petition for someone else to be appointed. A will is important because it gives an outline to how the deceased wanted their assets split. Wills are guiding documents that ensure the settlement process follows their wishes. Not only do wills protect your assets when you leave, but they provide clarity for your loved ones amidst the emotional turmoil.

Vocab & FAQs

There are some words you should know, as they define how a probate case will be handled. Whether or not they apply to you, it’s good to have the knowledge. These words will help you better grasp what you’re reading:

  • Probate Assets – Probate assets are assets subject to probate after you’ve passed away, things like real properties, cars, your bank account and savings account, and any valuable personal property
  • Non-Probate Assets – non-Probate assets are just that, assets that cannot be subject to probate by the court. This includes, but is not limited to, things like jointly owned properties, bank accounts, trusts or accounts with named beneficiaries, or a decedent’s partner’s properties
  • Testate – When you die in Testate, you have died with a valid will to help disperse your belongings. After it is validated in a courtroom, your family must disperse your belongings according to your wishes. Wills ensure you get what you want even after you have passed away.
  • Intestate – When you die intestate, you die without a will, meaning the court will help decide how to split your assets. They will appoint an administrator, and the administrator will carry out their role according to the factors set forth in 31-2-101.
  • Testator – Testators are people who have made a valid will with their legal counsel. It is ‘any person who makes a will.’
  • Executor – The executor is named in a testator’s will. They have the responsibility of carrying out and executing their loved ones final wishes. A hard, heavy burden.
  • Administrator – Administrators are court appointed executors. They are usually appointed when there is no will left by the deceased, or when families have contested the named executor. If the court decides to appoint an administrator, it will most likely be a close family member.

Each of these words are going to be used in this article. It’s important to understand what you are doing, especially when it pertains to legal matters, as you wouldn’t want to get arrested for a crime you didn’t even know you were committing. There are other things you should be aware of when involved in a probate case, like the intestate order of inheritance. the Right of survivorship or Tenants in common. The intestate order of inheritance, according to § 31-2-104 is as follows; Surviving spouse of the deceased, surviving child(ren), then parents of the deceased, siblings of the deceased, and then finally, if no previous family member is alive, both the maternal and paternal grandparents of the deceased would inherit leftover assets. The Right of Survivorship pertains to how joint ownership of real property would transfer to the other owner without passing through probate, whereas tenancy in common would pass down ownership to heirs through without the probate process. There is always more you can learn to ease the process of losing your loved one, however we recognize the difficult time it may be and are more than equipped to help you and your family through it. Give our office a call and see what steps we can help you take to move forward.

Fact Patterns

There is a big difference between testate and intestate probate cases. Let’s look at some and determine the what would happen in each separate case:

  • For example, Eleanor and James are sixty-three and sixty-seven, respectively. They had 3 children together over their 30 year long marriage; Kaylee, Josh, and Frankie. When James passed away, Eleanor was his named beneficiary, so any accounts he owned with beneficiaries were not subject to probate. However, his other accounts and their estate was, as she was not the beneficiary, they did not jointly own his other accounts, or the property. Because James passed away intestate, we follow the Order of Inheritance pursuant to § 31-2-104, and the estate would pass to Eleanor, then to the children when she passes.
  • Say it’s been 15 years since James passed. Eleanor passed soon after him, and besides the estate, all the assets were split evenly between the 3 children. The parents’ home, left to the youngest, Frankie. Because the home is on the beach, the 3 siblings have been using it as a family vacation house. One year, they are spending the summer together with their families, going to dinner when a semi truck T Bones their car, killing Frankie and Josh. Frankie was the youngest and single, so she had no partner or children for the house to pass down to, and because of this, the house was split by the court between the two remaining siblings in joint tenancy.
  • Here’s another example, Clara is a 26 yr old pediatric nurse. She is on her way home from a 12 hour shift when she accidentally falls asleep at the wheel and veers off the bridge. Clara had a baby in the beginning of college, and has been taking care of him since. Clara, despite being young, had made a will because of her son, and named her parents both heirs and executors, asking them to take in her son should something happen to her. Clara had set up a trust for her son, putting money in it in small increments. Because it’s a trust with her son as a named beneficiary, the trust was not subject to probate, whereas her other assets and belongings were. Her parents are the named heirs, and inherited her leftover assets after probate.

Conclusion

The biggest takeaway from this article should be, always write a will. If you have a valid will, all your assets and properties will be ensured protection, and if you have a will, your things will be dispersed as you want them to be. Wills make the process quicker and easier, especially during a time of loss. There are always steps you can take to smoothen the process, and our firm is here to take those steps with you.

Free Focused students doing homework at home Stock Photo

Empowering Parents – Tools for Enforcing Child Support

by Child Support
Free Focused students doing homework at home Stock Photo

What Can You Do

The first thing you should do when your co-parent is not paying Child Support is open a line of communication. Try to first understand why they were not paying their obligated child support. If you cannot get into contact with the other parent and are still in the midst of legal procedures, you should file a Motion To Compel or even a Petition of Contempt. These filings are the easiest and most simple way to make somebody comply with court orders such as child support. However, these are short term solutions that are not available for every person getting paid child support. Here are some other resources and actions you can take to enforce your child support order.

First Things First

Remember to always be courteous and respectful to the other parent, even when it’s hard, and even when they aren’t there. If you’re unable to get into contact with your co-parent and are not in an active court case the first thing you should do is report the delinquent parent to DHS or your local county child support office, they will assist in helping you take steps to enforce your child support order. Depending on the case and situation, the officials will choose the best action to take to enforce the order. Of course, each case is unique in its components and elements, and will be considered carefully before a course of action is taken.

Legal Procedure

In litigant procedures like divorce, child custody and support are determined in parenting plans pursuant to T.C.A. 36-6-404. If you file a petition or motion, the other parent may contest petitions or motions with council, or pro se. Courts in Tennessee favor neither the mother, nor the father, but rather the child. In a juvenile case, the courts will follow through with a plan of action that best supports and benefits the child(ren) and their wellbeing. Modifying an existing parenting plan is always possible and either parent can go back and file for a modification of a parenting plan. If your child is not getting the care they deserve, consider pursuing legal action. Give our office a call for the best chance.

Enforcement Options

You may file a Petition of Contempt in your active case if your co-parent is not paying the ordered child support, or you may open up a new case if you do not have one already. Other options include, but are not limited to:

  • Wage Garnishment –  When the delinquent parent’s employer withholds a percentage of their check to give to the county to send to the custodial parent
  • Intercepting tax returns – IRS will deduct a percentage of tax returns to offset outstanding balances. Any parent who owes more than $500 dollars to the support case, they are automatically subject to the “Tax Refund Offset Program.’
  • Liens on properties – DHS can issue liens on any properties and assets in your name. If you owe child support and withhold those funds knowingly and needlessly, the county can issue a lien on your assets, like a home, a car, a boat, bank accounts, etc. 
  • Seizing properties – DHS is capable of data matching and will do so when necessary. If there is an active lien on a property and the non-custodial parent still withholds payment, the county can seize and sell properties to fulfill the child support obligation.
  • Seizure of bank accounts – DHS, using the same data matching technology can also freeze or seize bank accounts, bonuses, retirements, social security, disability, retirement etc. Anything you have financial ownership of is subject to seizure or deductions.
  • Seizure of licensure – DHS is also capable of freezing licenses. Driver’s licenses are most commonly frozen, of course, but other licenses like medical or legal practice licenses, aviation licenses and more are all subject to seizure when you knowingly and needlessly avoid your child support obligations.

Resources

There are so many resources available for single parents, especially single mothers. There are resources available for parents who’ve broken up but understand the importance of stepping up to raise their child. These are just some;

Summary

Parents missing or skipping out on their child support obligation is all too common, and thankfully there are resources available and actions you can take to pursue what’s best for your child. It takes a village to raise a child, let us be a part of yours and give us a call today! We here to help and support you through your legal procedures in any way we can.

Free Caring African American man holding hands of careful kid while walking on wooden log in grassy park on blurred background Stock Photo

Determining Finances – Navigating the Elements of Child Support

by Child Support
Free Caring African American man holding hands of careful kid while walking on wooden log in grassy park on blurred background Stock Photo

Introduction

There are many factors to account for when determining Child Support between two parents. The court will look at things like annual income, the number of children, the child’s relationship with the parent, which parent is the custodial parent, or other similar factors listed in the Child Support Guidelines. Custody is also another factor the courts consider, and it may be the most important one. In a divorce you may be able to split the home value, assets, or other property, but you can’t split your children. Here in Tennessee, both parents are expected to care for and participate in their minor child’s life, mentally, physically, and financially, until they reach the age of majority.

Process of Petitioning for Child Support

To file for Child Support, paternity must first be established. This is because Child Custody and Support in Tennessee will always encourage both parents to take an active role in their child’s life, and determining paternity ensures the child will form a bond with their ‘natural parentage’. Once paternity has been established, you can file a petition with your local Juvenile or Chancery Court. The court will schedule a hearing, with notice of service to the other party as required per Local Rule 4. There, you and your child’s other parent must make a case for and against the petition. You and your co parent may reach an agreement without using mediation or vicious court battle, making the process smoother and simpler for you, however that is not the common case.

Factors That Affect Child Support Determination

There are numerous factors that contribute to how Child Support is determined in Tennessee, but the most important ones are, but not limited to:

  • The number of children being supported – One factor listed is the number of children the paying parent is financially supporting.
  • How much parenting time each parent has – Another, very important factor, is custody, and how much parenting time each parent has. The less time a parent is caring for the child, the more the parent is required to pay.
  • The age of the child(ren) – If your kids are younger, there are additional expenses such as diapers and daycare parents have to worry about.
  • Each parent’s separate monthly income – Each parent’s separate monthly income is an important factor in terms of actual financials. If the primary custody parent makes less, but cares more for the child, the alternate custody parent will end up paying more in Child Support. If the alternate custody parent makes more, but cares for the child less, then they will have to pay more in Child Support.
  • Child Care expenses – Childcare expenses includes food, housing, toys, clothes, etc. This factor covers each possible expense for a child
  • Medical expenses – Medical expenses may include pediatrics, dental, optometry, and other medical visits. If parents do not have insurance or insurance does not cover everything, the uninsured remaining balance will be split between the parents according to their permanent parenting plan
  • Educational and extracurricular expenses – This factor mostly pertains to older children in sports and other extracurricular activities and how parents are to split payment, or children who may attend private schools or take private lessons.

There are deviations from time to time, case specific details that alter the outcome of the proceeds, like a parent with an unusually high income, or parents who live far away from one another. Those kinds of details will affect the case tremendously, and should be presented to the court regardless of if it benefits you or not. Being honest and open with the court may open doors for you later in the case.

Why Is Custody So Important 

Custody, alongside the gross monthly income of parents are the two biggest deciding factors in Child Support cases. The more you make, the more you pay. In any custody case, a Permanent Parenting Plan, or PPP, is drafted. In this PPP, you and your co parent will designate times and days in which each of you will have your child(ren), which parent will pick up and drop off the child, which parent is responsible for medical visits, and other things of similar nature. The PPP will also designate the ‘Primary Residential Parent’ (PRP) and the ‘Alternate Residential Parent’ (ARP). The PRP is the parent with the most time spent caring for the wellbeing of the child, while the ARP is the parent who spends less time caring for the wellbeing of the child. Even counting the amount of money each parent makes, the ARP will always pay the PPP, never the other way around. The less time you spend with the child, the less you are caring for them, and thus the less you are spending on them. 

Enforcing Child Support Orders

There are a couple ways to enforce an issued Child Support order, even if the ARP is unwilling. If a parent is unwilling to pay the designated child support obligation, you should first file a Motion to Compel, if you are in an active court case. If you are not, you should report the delinquent parent to DHS, so that they may go through the proper channels and enforce the order. Some common financial penalties include:

  • Wage Garnishment
  • Seizing invested assets
  • Intercepting Tax Returns
  • Placing liens on properties
  • Seizing bank accounts

These actions are made in an attempt to force the ARP to pay their Child Support Obligation. Other penalties include revoking driver’s license or short jail time, however those are more serious punishments for delinquent parents who have not paid their child support for a long time, or for multiple children. 

Conclusion

Child Support is determined according to factors set forth in Tennessee Code Annotated § 36-5-101. Among those factors, custody and income are the biggest and most important. Child Support is vital and necessary when raising a child, it ensures the child will be properly cared for, and ensures they will get everything they need. The process of obtaining child support may be difficult sometimes, but it’s worth it in the end, because it’s for your kid. If you need help filing or modifying your child support order, contact our office today. Our attorneys have years of experience and look forward to working with you!

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free People Having a Deal in the Office Stock Photo

Are You A Criminal? – A Look Into Civil and Criminal Contempt

by Contempt
Free People Having a Deal in the Office Stock Photo

What Is Contempt?

Contempt is the willful obstruction of justice, whether that be in the form of disobeying court orders, directly or indirectly, any action that hinder an investigation, disrupting proceedings, blatant disrespect or defiance to the Judge or Magistrate. There are two types of contempt, civil contempt and criminal contempt, and depending on the severity of the contempt of court, the punishment will vary, from fines to jail time.

Civil Contempt

Civil contempt is a far easier crime to commit. Civil contempt occurs when someone fails to comply with a court order that benefits a private party, i.e. child visitation and child support, restraining orders, or delaying the submission of evidence. If a situation like this arises in your case, your lawyer may file contempt of court against the opposite party, and vice versa. Contempt of court does not have the goal of punishing the contemnor but rather compliance of the court order(s). To establish contempt of court, there must already have been a court order served to the other party, and you must prove that failure to comply with the court’s orders was willful. Civil Contempt is easier to prove as it does not have to be proven “beyond a reasonable doubt,” unlike criminal contempt. Once you or the other party complies with the court order, the contempt will be “purged” and the case may continue. In a worst case scenario, the court determines compliance is no longer feasible, and you may be fined or imprisoned for a short time. In some cases, the court may issue a warrant for the contemnor’s arrest if other sanctions have failed to achieve compliance. 

Criminal Contempt

Criminal Contempt is blatant disregard of the court and its procedures. Criminal contempt involves actions that directly interfere with the administration of justice or defy the authority of the court itself. Any disrespect of the court, the magistrate or any other judicial officer can result in criminal contempt. The two types of criminal contempt are direct contempt and indirect contempt. Direct criminal contempt occurs when disruptive behavior or disrespect happens in court, such as being verbally abusive to the judge, refusing to follow court decorum, or being physically disruptive at proceedings. Indirect criminal contempt involves behavior outside the court that still obstructs justice or disrespects the court and its decisions, such as disobeying a court order or violating a gag order. The purpose of criminal contempt is to uphold the authority and dignity of the court system and to ensure that judicial proceedings can continue without disruption. It also intends to maintain respect of the court and legal procedures.  Criminal contempt should be based on the objective standard of whether the conduct in question disrupts or obstructs the administration of justice, rather than focusing solely on the impact on specific individuals involved in the case. Committing criminal contempt of any kind has its penalties, from fines to brief jail time. If you’ve committed direct contempt of the courtroom, the judge has the authority to fine you, throw you out of the courtroom, or even imprison you. Because there are more severe punishments when having committed criminal contempt, it must be proven beyond a reasonable doubt that the contemnor has willfully engaged in the actions.

Compare & Contrast

In both situations, the contemnor must be served proper notice according to Local Rule 4: Civil Procedures. In any legal case, a person must be served notice, otherwise the litigant process is null and void as the prosecuted person may claim no knowledge of the case. You can only commit civil contempt in your own case, however any person in a courtroom can commit criminal contempt. Unlike civil contempt, criminal contempt cannot be purged or expunged, and it goes permanently on your record. Aggravated criminal contempt will put you in jail longer, but the average jail time of someone who has committed criminal contempt is no more than 6 months. 

Conclusion

Regardless if you have committed contempt yourself, or if you want to file a motion against someone for contempt, civil or criminal, it’s all avoidable. The key is self control and emotional regulation. Following court orders to the best of your ability will help your case, showing the bench you are willing to try and are open to their opinions and rulings. Contempt serves as a crucial mechanism for maintaining order and respect within the court system. It underscores the importance of adherence to court rules and orders, as well as the principles of justice and fairness in legal proceedings. 

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Two Adult Women Beside Each Other Stock Photo

Inside the Maze – A Guide to Conservatorship and It’s Foundations

by Conservatorships
Free Two Adult Women Beside Each Other Stock Photo

What Is Conservatorship?

Conservatorship is a special title that grants custodial duties or guardianship over one person to another. Though usually given to those who are considered incapable of making their own decisions, like the sick or elderly, it is also used in specific custody instances. Conservators must always act in the best interest of the conservatee, considering their personal preferences and wishes whenever possible. There are two types of conservatorship, conservatorship over person or estate. Conservatorship of a person pertains to making decisions regarding their care and welfare, personal necessities, and other important aspects. It is taking care of and watching over the welfare of another, making sure they are of sound body and mind. Conservatorship of the estate involves more financial responsibilities like managing income and assets or maintaining land and property. 

What Are The Responsibilities Of Someone With Conservatorship?

The responsibilities of any conservator, no matter the type of conservatorship includes managing finances and assets, watching over and maintaining the wellbeing of the conservatee, keeping open communication with the court about the conservatee’s status, the actions taken by you to maintain the wellbeing of the conservatee, any changes in the circumstance of the conservatee, etc. If you have conservatorship of a person, more responsibilities may include housing, medical care, nutrition,  clothing, and bathing. Conservatorship of a person can be over a minor in need of guardianship or over the elderly who can no longer take care of themselves. Conservatorship of the estate may include more responsibilities such as paying bills, managing income and assets, and making investment decisions. 

How To Earn Conservatorship?

Conservatorship is a large responsibility, one that can only be awarded to you through a court process. It is not a responsibility you can take lightly, nor should you, were you to find yourself in such a position. If you need more resources about Conservatorship, check out this County Clerk Conservatorship Packet for more information! Conservatees are typically older individuals, those with mental disabilities or delays, or due to their age. Conservatorship is earned through a process of petitioning the court. You must submit a petition of conservatorship to the appropriate court, and give notice of service to any family members of the future conservatee or anyone else who may want to contest the conservatorship or petition themselves. When the petition has been officially filed, the court will appoint an evaluator who will determine the situation of the conservatee, what their living situation is like, how they handle taking care of their own daily responsibilities. The evaluator is an unbiased 3rd party who will form their own opinion on whether or not they think conservatorship is necessary. After the evaluator has learned the necessary information and forms their opinion, the court will have a scheduled hearing where you will present your case, including information on you, your relationship with the conservatee, how conservatorship may benefit the conservatee, etc. Family members may contest the conservatorship, but follow the factors set forth in Tennessee Code Annotated § 32-4-101. They may also petition themselves to be the conservator and must also supply the same information as you. After any and all petitions, and after the evaluator has given their opinion, the court will dismiss the parties’ and examine the case to make the best possible decision for the conservatee. The appointed conservator will have full legal authority over financial matters and personal matters of the conservatee. A conservator is required to periodically check in with the court about the status of the conservatee.

Conclusion

After the court proceeds, the conservator still has responsibilities with the court pertaining to the conservatee. Exact processes and legalities may differ by county or state regarding both conservatorship itself, as well as the court process to obtain it. Because conservatorship limits the conservatee in regards to personal choice, it is only applied in very serious cases when deemed absolutely necessary. Tennessee law encourages the use of less restrictive alternatives to conservatorship, such as powers of attorney, trusts, or supported decision-making agreements, whenever possible. The goal of conservatorship in Tennessee, as in other states, is to protect the best interests and well-being of individuals who are unable to manage their own affairs due to incapacity. 

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Brown Cardboard Box on Brown Wooden Table Stock Photo

Navigating Relocation – Legal and Practical Consideration

by Relocation
Free Brown Cardboard Box on Brown Wooden Table Stock Photo

What is Relocation?

Only when there is split custody between parents can relocation happen. It is “if a parent who is spending intervals of time with a child desires to relocate outside the state or more than fifty (50) miles from the other parent within the state,” the relocating parent is required to notify the other a minimum of 60 days before the planned move, per Tennessee Annotated Code § 36-6-108. Not only that, but the official notice must also contain the determined location of the new residence, why you’re moving, and a blank form for the other parent to sign if they consent to the move and possible modifications of your pre established parenting plan. If the other parent consents, the two of you can move forward together and modify the parenting plan to adjust to the move. If not, you can take it to family court, and petition the court to approve your move without the consent of the other parent.

What determines the Court’s decision?

If you do have to go to court for approval, they are going to look at multiple factors, and respond according to what is best for the child. The age and developmental of the child, the impact the move would have on education, if the move would benefit the life of the child, whether financially, emotionally, or educationally. Other things, like if the child is considered old enough, at least 12, the court might ask them what they want to do. What’s the relationship like with both parents? Why are you moving? According to factors like these, the court will choose to approve your move or not.

What Happens After The Court’s Decision?

If the court approved your petition, you may go ahead with your plans of moving. There will be debate and possibly mediation between you and the co-parent about modifying the parenting plan to fit the new distance and schedule, but no legal trouble past that. However if the court denies your petition, you can continue petitioning or drop the case. The court’s decision is not legally binding, so if you choose to, you may relocate even if they decide against it, but you will get the short stick of the new, court modified parenting plan. The children will stay in the previous county or town, and if you had primary guardianship, you will lose it to the other parent. If there were to be future legal proceedings, relocation after a failed petition would not make your case look good. If you choose to continue petitioning, you must find undeniable proof of the benefit the move would have to the child, or prove that your previous reason was valid. In the case of Mann v Mann (2009), the court had denied a mother’s petition to move to Knoxville, TN from Nashville, TN, stating that because the father had provided “emotional developmental support” and a “nurturing environment for the children”, that to move them 3 hours away would have caused “specific and serious harm”. However, the mother kept up with her petition, and proved to the court that the harm would be specific, it would not be serious, or serious enough the children’s psyche would not repair afterwards. So, after she was initially denied, she was later approved and moved to Knoxville with the children, as she was the primary caretaker.

Conclusion:

Relocation is a very specific law in child custody cases, as it does not happen too often. I and when cases like this occur, it is best to work with your co-parent to reach a mutually beneficial decision, as to avoid court procedures and expenses. If the two of you cannot, and you think there is no other option, then pursue legal action, if you feel it is best. Keep in mind, the court isn’t there to help you decide what;s best, it’s there to help decide what’s best for the child.

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Focused young Asian mother working remotely while children playing on sofa Stock Photo

A Constitution for Parents – A Deep Dive of Parenting Plans

by Parenting Plan
Free Focused young Asian mother working remotely while children playing on sofa Stock Photo

What is a Parenting Plan?

A parenting plan is a comprehensive document that breaks down how parents are to share childcare responsibilities including but not limited to:

  • Child’s day-to-day schedule
  • Holiday schedule
  • Schedule for school breaks
  • Location for child exchanges
  • Decision-making parent for education, non-emergency health care, religious upbringing and extracurricular activities
  • Child support
  • Federal Income Tax Exemption
  • Exchanging information about each parent’s income 
  • Exchanging information about each parent’s work-related childcare expenses
  • Health, Dental, Vision and Orthodontic coverage for the child
  • Life Insurance on the life of a parent to benefit the child
  • Processes for dispute resolution among the parents
  • Statutory Rights of each parent
  • Statutory Requirements for Parental Relocation

and more!

Understanding the Elements of a Parenting Plan

  • Child’s day-to-day schedule – This section outlines a child’s schedule with each parent. For example, “Father shall have responsibility for the care of the child except that Mother shall have the child from Friday pick-up from school or daycare (6 pm if a non-school day) to Sunday at 6 pm every other weekend.”
  • Holiday schedule – This section outlines when a child will be with each parent during certain holidays. For example, a child may spend Labor Day with Mother in odd-numbered years and with Father in even-numbered years.
  • Schedule for school breaks – This section outlines which parent the child will spend time with during school breaks such as Spring Vacation, Fall Vacation and Winter Vacation. For example, a child may spend Fall Vacation with Mother in odd-numbered years and with Father in even-numbered years.
  • Location for child exchanges – This section sets forth where the parents will exchange the child. For example, “The parties shall exchange the child at McDonald’s at 123 Main Street, Nashville, TN.”
  • Decision-making parent for education, non-emergency health care, religious upbringing and extracurricular activities – This section outlines which parent will make important, non-emergency decisions about the child. Commonly, parents split this responsibility between one another as they have a large and lasting effect upon the child.
  • Child Support: If necessary, the court will allocate funds from one parent to the other for child expenses. This aspect is extremely case dependent and relies on the parents previous actions and financial situation. Expenses may be school extracurriculars, groceries for the child, medical expenses, and/or other things of that nature.
  • Federal Income Tax Exemption – This section determines which parent will claim the child in tax documents, and when. For example, “Mother will claim child as dependent in even-numbered years, and Father will claim child as dependent in odd-numbered years”.
  • Exchanging information about each parent’s income – This section outlines the necessary exchange of information regarding the other parent’s income, for the purposes of tax, insurance, and the like.
  • Exchanging information about each parent’s work-related childcare expenses – This section breaks down which parent will insure the child, for how long, and through what agency.
  • Health, Dental, Vision and Orthodontic coverage for the child – This section outlines what the insurance covers, and how the parents divide the uncovered expenses
  • Life Insurance on the life of a parent to benefit the child – This section determines if there is life insurance, and what will happen to it in the event of a death of a parent
  • Processes for dispute resolution among the parents – If parents cannot reach agreement on child care decisions, they go through the resolution process, which outlines the order in which a dispute should be resolved between parents. Mediation, with or without a neutral 3rd party will hopefully solve the disagreement, however if that fails, then the court or judge will reach a neutral verdict.
  • Statutory Rights of each parent – Any parent regardless of gender has statutory rights over their child. These rights include but are not limited to; unimpeded phone calls, mail to and from child, notice to important information, the right to receive information about the child’s education and extracurriculars, medical notice, etc.
  • Statutory Requirements for Parental Relocation – This section pertains to the legal procedure a parent with custody must go through if they plan to move more than 50 miles away from the other parent, or out of state. 
  • Communication Plan: A communication plan is a guideline for parents to effectively communicate with one another about the child via phone calls, text messages, or email.
  • Parenting Time Schedule: Parenting time schedules decide how long the child will stay at one or the other parents homes. If the custody is 50/50, parents will usually exchange the child with one another every few days, or even every week or two weeks. Beyond that, parenting time is case dependent.
  • Transportation Arrangements: It clarifies when and where parents would make an exchange of the child, and if needed, elaborates on payment for long distance transportation.

Who Needs a Parenting Plan?

In the State of Tennessee, a parenting plan is a required document for any custody action, for either parents in the midst of a divorce or parents who’ve never been married to one another. 

How is a Parenting Plan Created?

The court encourages parents to reach consensus together and form a parenting plan, however if that is not attainable, mediation with a third party may be the best next step to reach an agreement on a parenting plan. If the parties cannot agree, a magistrate or judge will set a permanent parenting plan both parties’ must follow, based on the best interests of the minor child as determined by the custody factors set forth in T.C.A. §36-6-106.

Can a Parenting Plan be Changed?

Once a parenting plan is in place, it can be changed upon the filing of a petition to modify the parenting plan. The court has to find that there has been a “material change in circumstances” since the entry of the last parenting plan. According to the court opinion in “Hindiyeh v Abed (2020)”, “A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody”. In this instance, the Father presented material change as both parties’ new equal income. The mother had a pay raise, and now that they made similar incomes, the Father argued for 50/50 custody and a decreased obligation in child support. The Court approved this appeal, and granted both requests. Only when material change is determined, will the court adjust parenting plans, applicable to the factors set forth in T.C.A. §36-6-106.

Conclusion

Parenting plans are clear, direct guidelines on how both parents should operate with one another regarding their child. They are extremely helpful in avoiding confusion and conflict with the other parent, and can help benefit you and your child by making things regarding their care simpler. A comprehensive document with many parts, parenting plans break down each potential aspect of coparenting and set precedence for your future actions. If you need to alter your current parenting plan, or are currently in need of a new one, consider giving our office a call! With many years of experience, our attorneys will commit to helping you in any way we can. We work closely with each client to understand their unique circumstances and to explain things that the Court tends to focus on. 

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Shallow Focus Photo of Man and Woman Kissing Stock Photo

“New Name, Who Dis?” – What Changing Your Name Looks Like In Tennessee

by Name Change
Free Shallow Focus Photo of Man and Woman Kissing Stock Photo

Why Change Your Name?

There are a handful of reasons to change your name, and where you go depends on why. Commonly, name changes are for the happy newlyweds, wives taking their husband’s last names till death do them part. Women have been taking their husband’s last name since all the way back to the 15th century! Divorce or other reasons such as preference, personal identity, or religious reasons.

Marriage or Divorce:

For marriage or divorce, the process is pretty much smooth sailing. You will take your marriage certificate or divorce file with you to the SSA office, where you will fill out an SS-5 form, (aka) a request for a new social security card. When those are turned in and your new card with your new name is issued, you can take it to the DSC/DMV and issue yourself new identification cards. Prices range from $18-$28 per card. Of course, there is no legal requirement for you to change your last name when married, in fact, almost 20% of women don’t! It wasn’t until the 1970’s that states across the country started implementing laws to make it easier for women to keep their surname. 

Gender-Confirming or Other Personal Reasons:

The process for personal and other reasons are a bit more difficult. You start at the local chancery court clerk. There, you will request an Adult Name Change form, where you will fill out necessary information, as well as why you are changing your name. When you finish filling out any paperwork, you will drop it off at the same place with a cashier’s check of anywhere between $160-215, making sure to bring all the official documents with you! Once that is done, you will wait for your court hearing, which takes up to 4 weeks after your initial petition submission. You’ll be sworn in so the presiding judge or magistrate can ask you questions, mostly pertaining to things like debts and identity, to ensure you are not changing your name to evade the law. If your petition is granted, an order for a new birth certificate will be issued with the new name. After that, the hardest part is done. All you have to do now is take your documents with you to the SSA office to order a new social security card, then you can go to the DSC/DMV to order new Identification cards. Prices are about the same, ranging anywhere from $18-$28 per card.

Extra:

Remember: You need all official documentation, no copies! 

Remember: If you are changing your name to something more gender-affirming, in the state of Tennessee, you cannot yet change your sex on your birth certificate, even if you’ve had gender-reassignment surgeries.

Remember: Under T.C.A 68-3-203, if you request to change the name on your birth certificate, “the state registrar shall amend the certificate of birth to show the new name,” notice ‘amend’ rather than ‘replace.’ Here in Tennessee, to amend your birth certificate, the birth name will be slashed out, with your chosen one above it.

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

Free Man in Black Suit Jacket Sitting on Brown Wooden Armchair Stock Photo

The Voice of a Child: The Guardian Ad Litem’s Role Explained

by Child Custody
Free Man in Black Suit Jacket Sitting on Brown Wooden Armchair Stock Photo

In legal matters involving children, particularly in Tennessee, the role of a Guardian ad Litem (GAL) can be crucial. Whether you’re navigating through a divorce, child custody battle, or another issue where the interests of a child are at stake, understanding when and why to involve a GAL is essential. 

What is a Guardian Ad Litem?

A Guardian Ad Litem is a licensed attorney appointed by the court to represent the best interests of the child in legal proceedings. Their primary responsibility is to independently investigate the circumstances of the case, gather relevant information, and make recommendations to the court based on what they believe to be in the child’s best interests pursuant to the Tennessee Code Annotated §34-1-107. 

When is a Guardian Ad Litem Necessary?

– Child Custody and Visitation Disputes: In cases where parents are unable to agree on custody arrangements or visitation schedules, a GAL may be appointed to assess the situation and make recommendations to the court.

– Neglect or Abuse Allegations: If there are allegations of neglect or abuse involving a child, a GAL can investigate these claims to ensure the child’s safety and well-being.

– Divorce Proceedings: During divorce proceedings, especially when custody of minor children is contested, a GAL may be appointed to provide an unbiased assessment of what would be best for the child.

– Termination of Parental Rights: In cases where termination of parental rights is being considered, a GAL may be appointed to advocate for the child’s interests and ensure their voice is heard.

Why Involve a Guardian ad Litem?

– Objective Perspective: GALs are trained to focus solely on the best interests of the child, providing an impartial viewpoint that can sometimes be lost in adversarial legal proceedings.

– Investigation and Advocacy: They have the authority to investigate the child’s circumstances, interview relevant parties, review documents, and gather information crucial to making informed recommendations.

– Representation: GALs ensure that the child’s voice is heard in court, even if the child is too young to express their preferences directly. It’s important for all parties to understand that a GAL is not an attorney for the child but rather an advocate for their best interests. 

Legal matters involving children can be emotionally complex, in Tennessee, a Guardian Ad Litem serves as a critical advocate for children, ensuring their welfare remains paramount throughout legal proceedings. Whether you’re considering divorce, facing custody disputes, or dealing with allegations of neglect or abuse, understanding when a GAL is necessary can significantly impact the outcomes of your case. 

If you are unsure whether your case needs a Guardian Ad Litem, consulting with a qualified family law attorney can provide clarity and guidance according to your circumstances. Remember, the goal is always to prioritize the well-being and best interests of the child, and a GAL plays a pivotal role in achieving that goal within the legal framework. 

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.