News

Message From the Incoming Chair

Dear Section Members,

As the incoming chair of the Estate Planning and Probate Section for the 2016-2017 bar year, I cordially invite you to join us June 15-18 at the annual TBA Convention in Nashville at the Sheraton Music City Hotel. In particular, please make plans to attend the Estate Planning and Probate Section meeting on Friday, June 17, at 10 a.m. in the Cheekwood Room.

We will discuss plans for the upcoming TBA year, including continuing education and networking opportunities. As a Section Member, we welcome your attendance, participation and suggestions as to how we can make the Section stronger and a more valuable resource to you and your practice.

Please reach out to me directly if I can be of assistance. I look forward to serving as your Chair and hope to see you at the TBA Convention in Nashville.

Jeff Carson

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Estate Planning and Probate Section to Meet at TBA Convention

Please make plans to join the TBA Estate Planning and Probate Section for a business meeting that will be held in conjunction with 2016 TBA Convention.  The TBA Estate Planning and Probate Section meeting is scheduled as follows:

Date/Time:

Friday, June 17, 2016
10:00 – 11:00 a.m. Central / 11:00 a.m. – 12:00 p.m. Eastern Time

Location:

Sheraton Music City Hotel
777 McGavock Pike
Nashville, TN 37214
(615) 885-2200

Room Location - Cheekwood Room

A conference call will be available for those unable to attend in person. The following are the instructions for joining the call:

You will dial in on the following number: 1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign: 5722409#

There is still time if you would like to register for TBA Convention. You may register by calling the TBA at (615) 383-7421 or register online at:

2016 TBA Convention

You do not have to be registered for Convention to attend this Section meeting.  We hope to see you there!

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Nursing Home Ejections Raise Legal Questions

The ABA Journal explores the legality of nursing homes ejecting patients who are considered undesirable. The Long-Term Care Ombudsman Program found eviction and discharge complaints have increased about 57 percent since 2000. The article highlights a California case where the family of an ousted patient appealed to the health department and won, yet the nursing home still refused to readmit the patient. 

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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House Civil Justice Committee Forwards Bills

The House Civil Justice Committee this week sent several bills to the House floor before it closed for the year. Among those are: changes to the conservator law, HB2030 by Rep. Jeremy Faison, R-Cosby; changes to the tolling statute for those persons who “lack capacity” were made with HB1651 by Rep. David Hawk, R-Greenville; and HB2033, also by Rep. Faison, as amended creates civil immunity for those property owners who do not post “no guns allowed” signs.

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Mentors in Estate Planning & Probate Needed

The TBA Mentoring Program is looking for volunteer mentors dealing with estate planning & probate in the Davidson, Williamson, Maury and Rutherford County areas. Mentoring is the most effective way to pass along skills, knowledge and wisdom and it is critical to a new lawyer’s success. There are many new attorneys signed up for this program, but there is a shortage of mentors to match them with. 

To qualify as a mentor, you must have a minimum of eight years of experience with no formal BPR investigation pending or disciplinary action imposed in the last 10 years. For more information on the program, visit: http://www.tba.org/programs/the-tba-mentoring-program.

If you’re interested in signing up, please contact Kate Prince at 615-277-3202.

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Bill on Witness Signatures for Wills Moves to Senate Floor

The Senate Judiciary Committee today passed SB1560 by Sen. Ferrell Haile, R-Gallatin, with an amendment. The bill as amended provides that any will executed prior to July 1 will be considered executed if the witnesses to the will signed a self-proving affidavit incorporated in a will and other existing statuary requirements are met. The bill will go to the Senate floor next. Rep. William Lamberth, R-Cottontown, passed the companion bill, HB1472, on the House floor last week.

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Bill Addressing Witness Signatures Moves Out of Committee

Legislation from Rep. William Lamberth, R-Cottontown, permitting until July 1, 2016 the combined signatures of witnesses and those executing a self-proving affidavit to validate a testators signature moved out of the House Judiciary Committee today. The bill (HB 1472) is intended to address a situation like that addressed in the Court of Appeals case IN RE Estate of Bill Morris.

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News About Section Members

Matthew Buyer recently moved to Pinnacle Financial Partners to open the Memphis Trust Department. In addition, he will continue to serve as an adjunct in the MBA program at Webster University in Millington. He also recently completed 32 years of reserve duty with the Army National Guard.

Jeff Carson of Franklin has been named vice chair of the TBA Estate Planning and Probate Section. He will assume the chairmanship for the 2016-2017 bar year.

Jennifer Exum has recently been named Of Counsel for Chambliss Law in Chattanooga.

Angelia Nystrom of Knoxville has been named Director of Specialty Programs for the University of Tennessee Institute of Agriculture.

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LAET Partners with Attorney to Offer Free Estate Planning

Attorney David Coates, of the Law Offices of David Coates, has partnered with Habitat for Humanity and Legal Aid of East Tennessee to offer free estate planning this Saturday to every Habitat for Humanity of Greater Chattanooga Area homeowner in the Chattanooga area. “Now that these families are homeowners, it is such a blessing to see them able to meet with a lawyer to help protect their homes,” Cheryl Marsh, Director of Family Services, said. The clinic, along with a free legal clinic, will be held in the Chattanooga Housing Authority’s multipurpose room located at 801 N. Holtzclaw Ave.

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Pending Legislation for Digital Assets

By Donald Farinato, Executive Council Member, TBA Estate Planning and Probate Section

January brings the commencement of a new legislative session, and with it, the continued contemplation of Senate Bill 0326 (SB0326), which is legislation carried over from the last session. If enacted, SB0326 would provide guidance and authority for executors, conservators and other fiduciaries regarding access to digital assets of a deceased or incapacitated individual. 

The National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the Uniform Fiduciary Access to Digital Assets Act (UFADAA) in final form during the summer of 2014. UFADAA proposed a uniform system for all fiduciaries, including personal representatives, trustees, conservators and attorneys-in-fact, to access digital assets.On Feb. 3, 2015, SB0326 introduced Tennessee’s version of UFADAA (TUFADAA). Initially, UFADAA was well-received by various states nationwide, and it appeared that Tennessee fiduciaries would be able to rely upon TUFADAA.  However, concerns from various sectors of the technology industry stalled the initial nationwide momentum, and various states postponed pending legislation. In Tennessee, on April 8, 2015, action on TUFADAA was deferred to Jan. 12, 2016. 

In response to the concerns raised by various technology companies, late in 2015 NCCUSL developed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) to replace UFADAA. An amendment to SB0326 was added to integrate the changes included in RUFADAA in the Tennessee bill. SB0326 continues to be contemplated, and if enacted, would provide a framework for individuals to plan for their digital assets upon their incapacity or death. 

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Sensitizing Clients About Digital Assets

By Donald Farinato, Executive Council Member, TBA Estate Planning and Probate Section

Most of my clients have some type of “digital life” through which they chronicle their vacations on Facebook, capture pictures of a child’s soccer game on their cell phone, automated bill paying through online banking, and otherwise utilize their digital assets. While digital assets are important to many clients, few undertake efforts to protect these assets. Without proper planning, digital assets are subject to loss. 

Digital assets are those assets that exist only in electronic form. Examples include PayPal accounts, LinkedIn profiles and emails. Generally speaking, it is easy for a client to utilize and access digital assets.  However, it can be problematic for others to access a client’s digital assets should the client die or become incapacitated. There are a number of barriers to others accessing a client’s digital assets, including federal legislation, such as the Stored Communications Act, and Tennessee statutes, such as the Tennessee Personal and Commercial Computer Act of 2003. In addition to both federal and state laws, terms of service agreements, which govern the terms of use of electronic accounts, can restrict access to digital assets. 

Because of the potential pitfalls, I endeavor to inform clients about digital assets early in the estate planning process. I want clients to think about their digital assets in terms of three categories: “practical” digital assets, “sentimental” digital assets and “valuable” digital assets. 

“Practical” digital assets include investment accounts solely with an online presence and automated bill paying services.  Many of my clients utilize these types of services, and their loved ones would be inconvenienced if precluded from accessing the accounts.

“Sentimental” digital assets include pictures uploaded on Shutterfly and tweets posted on a Twitter account.  Planning for the protection of this type of digital asset can be important since the electronic account may contain the only pictures of a special event, such as a child’s birthday party.

“Valuable” digital assets tend to be less common and can include well-developed blogs and valuable domain names. For example, a client may have started an online community to discuss Corvettes purely as a hobby, but after the community became quite active, companies selling specialty automotive parts were willing to pay for advertising in the online community. Without proper planning, an otherwise valuable asset could be lost or experience a significant decrease in value. 

I utilize an Estate Planning Questionnaire (EPQ) that I ask all estate planning clients to complete. The EPQ requests that the client provide standard estate planning information, such as financial information and family relationships. About a year ago, I added a section dealing with digital assets on my EPQ, asking the following three questions:

1.  Do you conduct any important transactions electronically (e.g.: paying utilities, monitoring investments)?  If so, please provide additional details.

2.  Do you have personal electronic accounts that are important to you (e.g.: Facebook, Twitter, pictures stored on cell phone)?  If so, please provide additional details.

3.  Do you own or have an interest in any digital assets that are valuable (e.g.: domain names, blogs)?  If so, please provide additional details.

The three questions on the EPQ help sensitize clients about the need to consider digital assets as part of their planning. Because there are not yet sufficient laws in place to provide for the handling of digital assets upon death or incapacity, clients are best served by contemplating early on how they want their digital assets to be handled. Potential decisions include whether to engage in self-help, such as saving pictures from a Facebook account to a computer to make sure beneficiaries have unfettered access. 

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Vanderbilt Law Professor Elected to Estate Planning Hall of Fame

Jeffrey Schoenblum, Centennial Professor of Law at Vanderbilt, has been elected to the Estate Planning Hall of Fame. The award is given annually by the National Association of Estate Planners & Councils in recognition of significant and outstanding lifetime achievements and contributions to the practice and profession of estate planning. Schoenblum has taught trust and estate law at Vanderbilt Law School since 1977.

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Columns: Evolving Legal Markets, Robin Williams, Banking and Fred Thompson

In this issue of the Tennessee Bar Journal, TBA President Bill Harbison writes about the "disruptive changes" that are occurring in the delivery of legal services. Columnist Eddy Smith details the genius of Robin Williams' estate plan and Kathryn Reed Edge covers banking and the U.S. Supreme Court. In his column, Bill Haltom remembers Sen. Fred Thompson and his tremendous contributions to the law and history.

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Memphis City Employees Suing Over Pension Cuts

Unions representing Memphis city employees filed a lawsuit asking a judge to stop planned pension cuts for newer employees, WREG reports. "The City Council just arbitrarily selected 7 1/2 years and there was basis for that decision other than just pick a number," Danny Todd with the International Firefighters Association said. The pension cuts are expected to take place next July.

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Will and Estate Advice Seminar This Weekend in Knoxville

The Knoxville Bar Association will share free will and estate advice at its LawTalk seminar from 9 a.m. – 1 p.m. Friday at the John T. O’Connor Senior Citizens Center, 611 Winona St., and Saturday at Fellowship Church, 8000 Middlebrook Pike. Read more from the Knoxville News Sentinel.

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State Officials Support 'Celebrate Pro Bono Month'

State officials are encouraging Tennesseans to learn more about their legal options this month, NewsChannel 9 reports. The Tennessee Department of Commerce and Insurance's Division of Consumer Affairs reminds everyone that National Celebrate Pro Bono Week is being observed Oct. 25-31 across the nation. The department says that the week is a good time for people to "educate themselves when it comes to their legal options, which could be a title search, estate planning or a legal defense." In Tennessee more than 50 events are happening across the state during October. Now in its seventh year, the Tennessee initiative brings together bar associations, law schools, law firms, legal services providers and individual lawyers to offer free services to those unable to afford a lawyer. Learn more about the 2015 Celebrate Pro Bono Initiative.

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Opinion: Bitcoin Poses Unique Challenges for Lawyers

Because of their unique attributes, bitcoin and other virtual currencies present challenges for lawyers who wish to locate and collect against assets, a contributor to the Nashville Business Journal argues. Andrew Hinkes with the Florida business law firm Berger Singerman says the movement of money “almost instantly, without payment of fees and with minimal records” seriously complicates the tracing of assets. He encourages lawyers to understand how these systems work.

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2 Legal Aid Clinics Set for Oct. 27

Legal aid groups will hold two clinics on Oct. 27. The first, sponsored by Legal Aid of East Tennessee, will take place in Jonesborough from 2 to 4 p.m. at the Jonesborough Senior Center. The focus will be on estate planning. Contact Christy Harris for more information. The second is a general legal advice clinic in Jackson. That event will take place from 9 to 11 a.m. at the Regional Inter-Faith Association. Contact Kathryn Tucker for details. See the full list of Celebrate Pro Bono Month events.

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Weekend Clinics Planned for Oct. 3, 10

Celebrate Pro Bono Month events are planned for the next two weekends in Knoxville and Memphis. Legal Aid of East Tennessee will hold a legal advice clinic Saturday from 9 a.m. to noon at its Knoxville office. Call (865) 637-0484 to learn more. On Oct. 10, the TBA Young Lawyers Division will host a Wills for Heroes Clinic in Memphis. Contact Chasity Grice, (901) 761-3140, to get involved. See the full list of Celebrate Pro Bono Month events.

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50 Years of Travel, Plus Columns on Wills, Banking, Uber

To celebrate the Journal’s 50th birthday, travel back through some of the exotic trips the TBA has taken over the years -- Rome, Mexico, the Caribbean and more. This month, columnist Eddy Smith asks (and answers) the question, "Strictly Speaking, When Is a Will Not a Will?" and in her column, Kathryn Reed Edge gives an overview of interest rates. Humor columnist Bill Haltom suggests a slight career concept change … to Uber Attorney. See the entire August Journal here.

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Learn More About the Post Tanco World

The outcome of the historical case Tanco v. Haslam will continue to have a significant impact on several aspects of the law. Join your colleagues on Sept. 18 for the first annual LGBT Law Forum to discuss how the case will impact family law, estate planning, real estate and health care practices. And in case you missed it, the TBA's one-hour webcast on marriage equality covers the basics of the case.

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Community Forum Explores Social Security Issues

The year’s first Community Legal Forum – a joint initiative of the Bradley County Bar Association, the Bradley Governmental Law Library Commission and the Cleveland/Bradley Public Library – will take place June 2 at 7:30 p.m. at the library. Cleveland attorney Jack Tapper will lead the session, which is free and open to the public. The program will look at the basics of processing Social Security Disability and Supplemental Security Income claims as well as ways to increase Social Security benefits for married, divorced and widowed spouses, the Cleveland Banner reports.

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Learn More About Pending Decision on Marriage Equality

Join us in person or via webcast on July 2 for a TBA CLE on the Tanco v. Haslam marriage recognition challenge. The presentation will include a discussion on how the U.S. Supreme Court's decision will affect Tennessee, as well as an overview of the background, parties and issues involved in the case. Register for the onsite program or for the webcast.

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B.B. King Family Loses Battle for Control

Family members of Blues legend B.B. King lost a bid to take control of their ailing father’s affairs in a Las Vegas courtroom on Thursday. Three of King’s 11 surviving children asked the court to take control from King’s longtime business manager because they said he was stealing money and neglecting King’s medical care. The judge ruled there was no evidence to back up the claims, WRCB-TV reports.

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