Choice to Proceed Intestate Can Save Time and Money - Articles

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Posted by: on May 1, 2012

Journal Issue Date: May 2012

Journal Name: May 2012 - Vol. 48, No. 5

Those of us who routinely administer estates run into Will validity issues much too often, and it is indeed frustrating when a Will — particularly one prepared by an attorney — fails to meet the statutory requirements of execution. However, we have to be careful in our assumptions. In his article (“Questionable Will Executions: Should ‘Substantial Compliance’ Suffice? April 2012 TBJ), Dan Holbrook makes the statement that to invalidate a questionably executed Will may thwart ‘what seems clearly the testator’s intent.’” It is possible, however, that the choice to disregard a clearly invalid document actually provides an alternative, more efficient path to the same result.

If intestate administration does not change the identity of the Personal Representative or the interests of the heirs, and the heirs take advantage of the opportunity to waive bond and other statutory requirements, then the choice to proceed intestate can save the estate the time delay, court costs and attorney fees that most likely will result from the filing of a faulty document.

As Mr. Holbrook points out, our execution statute is “black and white.” It is one statutue that provides the very guidance that an attorney needs to prepare a document that we know will be acceptable to the court to begin administration. If only the rest of the code was so well defined.

— Kelly G. Frere, Knoxville