Asked in Probate for Tennessee

Q: I'm named as Executor to my ex husbands Will. Our daughters filed an affidavit of heirship knowing this. Is that legal

I am having trouble getting an attorney now because I only have the Will on my phone after my house fire. Both daughters signed the Will. Also do I have any rights since the Will states I am to remain in the house. 1 month after our divorce we moved to Tennessee and the new home he bought but I furnished the home. McNairy deputies did not give me even renters rights. Our belongings were sold, burned and the rest taken when they abandoned the house last year after destroying the house , barn and property.

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2 Lawyer Answers
Anthony M. Avery
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Answered
  • Probate Lawyer
  • Knoxville, TN
  • Licensed in Tennessee

A: Nothing illegal about a Affidavit of Heirship which is true a that time. You may be able to file a copy of the will and probate it in solemn form, but it will be difficult and expensive. Unless there is alot of acreage, pursuing an interest in the property may not be worth it. If you do not live there, then you do not have a homestead. Consult with an attorney about whether to do anything.

A: If the Will was signed before your divorce, your ex's appointment of you as executor is void and whomever he appointed as alternate would be entitled to the position. In addition, anything he may have left to you in his Will, including the right to remain in the home, passes as if you died before him.

Finally, probating a Will usually requires the original paper document with the original wet ink signatures. This rule exists because the testator has the right at any time to revoke a Will by physically destroying the Will.

When a Will is destroyed under circumstances like you describe (e.g. a house fire), a copy can be probated as if it were an original. There must be solid evidence, however, that the Will was actually inside the home when the fire occurred. This usually involves testimony like: "I saw the Will on [date], put it in the wooden file cabinet in the den, locked the drawer, and I am the only one with a key. The next day, the house caught on fire and the wooden file cabinet was burnt to ash."

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