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The legal arena surrounding residential landlord tenant law can be like a mine field at times. One particular trap that many landlords find themselves in, involves a situation where a tenant has failed to pay their rent. In response, the landlord sends an eviction letter and eventually files a detainer suit on the matter to evict the tenant from the property. Sometime between the eviction letter and the court date, the tenant makes a payment to the landlord for rent.
This payment many times is minor in relation to what they owe in arrearages and sometimes it is not even a full month’s rent. The landlord is happy to get some money out of the tenant, so, they accept it and continue on with their eviction. On their court date they learn that the judge is dismissing their case for accepting the payment. The landlord pleads with the judge that the money they accepted was only a small part of what they are owed but it does no good and the judge dismisses their case anyway.
The dismissal is the result of the legal doctrine called waiver. Waiver is a concept where the landlord surrenders a legal right to proceed with the eviction by accepting a portion of the rent. This doctrine is established by case law and in some counties by statute. In counties that are controlled by the Uniform Residential Landlord & Tenant Act the doctrine is codified in TCA 66-28-508 which states “If the landlord accepts rent without reservation and with knowledge of a tenant default, the landlord by such acceptance condones the default and thereby waives such landlord’s right and is estopped from terminating the rental agreement as to that breach”.
Once the judge has dismissed the landlord’s lawsuit, the landlord must start all over again in the eviction process. Having to start all over can of course be a very costly and time consuming process that should always be avoided. This is only one of the many predicaments that a landlord can find himself in, regardless of his best intentions. That is why it is so important to hire an attorney well versed in landlord tenant issues early in the eviction and collection process.
I don’t have children or money, therefore I don’t need to worry about estate planning right now. I am young, I have plenty of time to deal with estate planning. Estate planning is so expensive.
These are common misconceptions about the law of estate planning. The truth is, estate planning is for everyone and doesn’t have to be expensive.
The Basics’ of Estate Planning. In the most basic terms, estate planning is a set of legal documents spelling out how you want to be cared for, and to whom and how you want your assets to be divided should you not be able to speak for yourself. These legal documents include your last will and testament, a living will, appointment of a general power of attorney and a health care agent. While each document serves a different purpose, together they empower another person to make decisions in regards to your assets, care and the care of your family in the event you are unable to.
Estate Planning Is For Everyone. When most people hear the words “estate” or “estate planning” they conjure up an image of someone who is retiring with money or a family planning for their children. However, what most people don’t realize is that no matter how large or how modest – nearly everyone has an estate to be planned for including you.
So what is in your estate? In the most basic terms, your “estate” is comprised of everything you own your home, other real estate, car, furniture, checking and savings account, life insurance, your valuables, etc. Therefore, whether you are single, married, divorced, widowed, or have children, you have an estate and can benefit from estate planning.
Estate Planning Does Not Have To Be Expensive. If you can’t afford a lavish estate plan, it is important that don’t put it off all together. Instead, start with a plan you can afford. For a single adult or young family, this could mean just having your basic will, health care plan and power of attorney in place. Over time, as your needs change, family change and assets grow, you can expand on your plan.
How To Get Started. The first thing to do when planning what to do with your estate is to determine what your wishes are and who you want to carry out those wishes in the case you are unable to. From there it is important to have an open conversation with your loved ones about your wishes. Next it is important to find an estate planning attorney who can help advise you on your situation. Your attorney will draft all of your estate planning documents to make sure you are taken care of no matter what life throws your way.
The Peace of Mind Benefit. The best benefit of estate planning is the peace of mind you will have knowing there is a proper plan in place for you and your family should something happen to you. If you would like to speak with a Tennessee estate planning attorney regarding your estate plan, be sure to contact us at Tressler & Associates. After all, the best gift you can give your family is the peace of mind they deserve.
If you have any questions about this or any other legal matters Call Us: 615.444.2345 or Contact Us Here
There is a common myth that estate planning is only for the elderly or the wealthy; maybe even only for the elderly and wealthy. This myth shows that few really know what estate planning involves. Here is a hint: estate planning is about more than only wills.
So, if you’re young and don’t have many assets, you might be wondering why you need an estate plan at all. Find out why it’s best that everyone have estate plans in order.
1. Do you own anything? Then you need an estate plan.
Although the word “estate” sounds formal, an estate is simply what you own. Most, if not all, people own something that they want to go to a specific person when they pass away. Whether that is a sentimental token, a family heirloom, a photo, or a pet, you probably have at least one item you want to go to someone in particular. It does not matter the monetary value of that item. You have the right to choose where that item goes.
The problem is, that if you don’t plan, the laws of your state will determine where your property goes. If you are single and childless, that probably means your parents will suddenly own everything that you currently hold in your possession.
More importantly, if you have children, you want to be the one to choose who would become their guardian. If you don’t make your wish legally explicit in legal writing, the State of Tennessee will choose for you.
2. Estate planning is more than wills.
How will anyone know your healthcare wishes if you are not able to communicate them? Who do you want to make healthcare decisions for you if you are not able to do so? Who will keep up with your financial matters if you are not able to do so? All of these questions are answered in a comprehensive estate plan.
For example, consider a Healthcare Durable Power of Attorney. With this, you are able to choose a person to make healthcare decisions for you if you cannot. It also allows you to name a person or persons who will have access to your medical documents if you are hospitalized. Most importantly, they will be able to give the hospital permission to treat you.
Similarly, a Living Will allows you to put your wishes for medical treatment in writing. This is so that there are no questions if you become unable to communicate them. For financial and other matters, you can create a Durable General Power of Attorney to designate a person to sign on your behalf in financial matters.
Contact Tressler & Associates for More Information
For better or worse, life is uncertain at any age. Have a plan in place. If you have any questions about this or any other legal matters, call Tressler & Associates at 615.444.2345 or contact us here.
Think about a married couple. When the first spouse dies, often the vast majority of assets are titled in both of their names. Therefore, everything passes to the surviving spouse without probate. However, what if the deceased spouse owned a piece of land the other spouse never had any involvement with? What if the only thing probate court needs to distribute in a decedent’s estate is real estate? Do you have to go through the entire probate process for real estate alone? Can you just sign some type of Deed?
The short answer to those questions: no and no. Thankfully, in Tennessee, we have a procedure that is specifically designed to deal with transferring real estate from a decedent’s name into the correct beneficiary’s name. This probate process for real estate is Probate for Muniment of Title. This type of limited probate process is basically three steps, but there are some important keys to remember.
What is Probate for Muniment of Title?
Probate of any type is much simpler when there is an original will. Therefore, you would start by locating the original will and an original death certificate. Once you have located those and determine that the only asset to be distributed is real estate, you would need an attorney to take you through the Muniment of Title procedures.
We would start the process by filing a Petition for Muniment of Title with the Probate Court’s office and a hearing would be set. A notice is then sent to all beneficiaries and heirs-at-law that this hearing is occurring. Assuming all goes according to plan, the judge will sign the Order at the hearing. Once the court signs the Order, it will be recorded in the Register of Deeds. This recording will serve as evidence of the transfer of title.
Going Through Probate for Real Estate Property? Contact Tressler & Associates
Although probate in Tennessee is a relatively streamlined process, we are thankful that there is an even more streamlined process for real estate. Should you need assistance in transferring real estate out of a decedent’s name, please contact the estate planning attorney at Tressler & Associates. We’ll be glad to help.
When your parents pass away, life is difficult enough. The last thing you want is to be stuck paying the mortgage on their house or risk foreclosure. It is quite common to want to sell the home as soon as possible. However, as many have found out the hard way, it’s not exactly as simple as signing a contract.
From time to time I will see a real estate contract that the children of a deceased parent have signed to sell that parent’s home. Those children can often either point to a Will showing that they are inheriting the home or the Tennessee intestacy laws state that they are inheriting the home. Either way, it seems clear that those children should have the power to sell the home. Unfortunately, it’s not that easy.
The best case scenario is that probate on the decedent’s estate is complete and those who have inherited the house can sell it. But I’m not talking about that situation. I’m talking about the situation when probate has not been started or when probate is not complete. Although the process for selling a home in those situations is not always identical, there are some common patterns. For instance, it is quite likely that you will need to get court approval to sell the home if probate has begun. Or, if you have not begun probate, you will probably have to open probate and then get approval from the court to sell. You can almost guarantee that we will need consent from the Tennessee Department of Revenue to sell the home and a release of potential claims from the Bureau of TennCare. If probate has not been completed, the best case scenario is that you can close on the home during the four month creditor’s period in probate and closing agent will hold your proceeds in escrow until the completion of the creditor’s period.
As you’re probably realizing, this can quickly become a complicated process. Also, I would not be doing my job if I did not mention that a Trust can avoid this. If your property is held in a Trust, even a Revocable Living Trust, it will pass outside of probate because it does not belong to the decedent, it belongs to the Trust. This simplifies the selling process immensely. However, whether you have a Trust, a Will, or no Will at all, we are equipped to walk you through this process.
Almost every client begins their journey to creating estate documents with an intake meeting. Inevitably, the first questions asked when the meeting is scheduled is, “what should I bring?” The good news is that there is no requirement for you to bring anything to your intake meeting. However, to get the most out of your meeting, it is beneficial to prepare for it. Here are a few key ways to do that:
Review and bring any prior estate documents that you have. This may not be necessary for your circumstances, but it is definitely helpful.
Gather basic information regarding your assets. One of the most important parts of the intake meeting is gathering information on what you own. At this point, we may not need to go into extensive detail, but we will need an outline of sorts. This does includes assets, such as real estate, that may be located in another state.
Think about what you want to happen with your assets and consider what is most important to you about that plan. For example, are you really wanting avoid probate? Do you have a lot of creditors? Are your children minors? At what ages do you want your heirs (or beneficiaries) to receive their distribution?
Come with questions. Another large part of the first meeting involves me teaching clients about the law and various options available. This is usually a great conversation that is only made better if questions are involved. This is your plan that we are building and I want you to be completely comfortable with the options you choose.
If you are interested, use our intake informational sheets. If you would like assistance in thinking through some of the details, our office does have intake forms that can be useful. Please feel free to use these, but they are optional.
The bottom-line is that we hope to make the intake process pleasant and straight-forward. Even if you feel completely unprepared for the meeting, we will gladly walk you through the process.
It may seem rare that your taxes decrease, but as of January 1, 2016, the State of Tennessee will no longer tax your Estate. This has been part of a plan that the State enacted in 2012, gradually increasing the amount of a tax-exempt estate until this year, when the tax was repealed completely.
Practically, this has several impacts.
1. First, this may simplify your estate planning.Because a large part of estate planning can be minimizing taxes, there is no longer a need to strategize in order to minimize Tennessee estate taxes.
2. Second, in most cases, there will be one less step involved in probating an estate or selling the real estate of a decedent.Typically, a clearance letter is required from the Tennessee Department of Revenue stating that the estate did not owe any inheritance tax.We will no longer need to receive that release.This is especially important when selling the real estate of a decedent.Obtaining that release has often been the delay of sales.
3. Third, it should be noted that there is still a Federal estate tax for estates over $5,450,000.00 so planning will be necessary to minimize or eliminate tax implications if your estate may exceed this amount.
It is important to realize that this only applies to decedents who passed away on or after January 1, 2016. This is because an estate is subject to the estate tax laws in place during the year in which the decedent passed away.
Unfortunately, phishing scams have become common place. Most email users are rightfully leery of an email pertaining to wiring information. However, in the rush of a closing, it is possible to fall prey to one recent scam.
WARNING!
The Federal Trade Commission and the National Association of Realtors have both issued warnings regarding the recent email and wire transfer scam concerning closing costs. In the course of a normal transaction, a buyer will often wire his or her funds to us prior to closing and we will disburse the funds according to the needs of the transaction.
In this particular scam, hackers pose as real estate agents, title company representatives, or another professional and send an email to the buyer stating that there has been a “last minute change” to the wiring information and the funds are to be sent to a different account. Because “last minute changes” can be common place in a closing, some buyers will not question this change and send the funds (sometimes hundreds of thousands of dollars) straight into the account of the hacker.
Anytime you receiving wiring instructions from us or any other company, please feel free to call and confirm those instructions. You can also call to confirm that we have received the wire after it has been sent. We want to be sure that your closing runs smoothly and the funds are transferred to the appropriate parties and out of the hands of scammers.
CONTACT US
If have a question or concern please contact us about any communication you have received asking for payment. Or any other legal matter feel free to email us or call.
The attorneys at Tressler & Associates regularly work with clients who own out-of-state real estate. Owning real estate outside of Tennessee drastically affects estate planning, so it’s always something we ask new clients if they have.
There are several laws to consider when clients own real estate outside of Tennessee. You have to contend with Tennessee’s and the other state’s estate planning laws. You should always make sure your estate planning attorney knows every state in which you hold property.
What is Out-of-State Real Estate?
“Out-of-state real estate” includes everything from a beach mansion in California to a small, empty plot of land in the Midwest. Did you know that without proper planning, your heirs will have to do a probate proceeding in Tennessee and any other state you own property in? Real estate outside of Tennessee doesn’t transfer through Tennessee probate proceedings.
Thankfully, there is an easy way to prevent this hassle. The most common way to avoid multiple probate proceedings is by placing the property in a Trust. By using a simple Trust, your family can usually avoid probate proceedings. Sometimes, the laws of other states don’t allow it.
Why Do You Need An Estate Planning Attorney?
At Tressler & Associates, PLLC, we can build a Trust that suits your needs. We can also draft the deed necessary to place your Tennessee real estate into that Trust. Then, we will work with attorneys in the other state to transfer the rest of your real estate into the Trust. As simple as this process is, it is rarely done. Without it, you risk leaving your heirs with a mess on their hands.
Even if you do not currently own a piece of real estate outside of Tennessee, consider this technique. You can start creating a Trust in advance of a purchase. We can build the Trust so that it is ready to receive that second piece of real estate whenever you make the purchase or not.
One of our goals is to make the transition of assets to your heirs as seamless as possible.
Contact the Estate Planning Attorneys at Tressler & Associates
For assistance with passing down out-of-state real estate, our estate planning attorney at Tressler & Associates has the experience to help you. This is a complicated process for anyone without the necessary experience to complete it. We’ll make sure that after you pass, your family will not have to deal with multiple probate proceedings. Contact us for help today.
615.444.2345
It may seem rare that your taxes decrease, but as of January 1, 2016, the State of Tennessee will no longer tax your Estate. This has been part of a plan that the State enacted in 2012, gradually increasing the amount of a tax-exempt estate until this year, when the tax was repealed completely.