What is the Victim's Bill of Rights in Tennessee?

What are the Steps of a Probate Case in Tennessee? 1. File Petition to Probate A Petition to Probate Testate (with a will) or Intestate (without a will) is filed. Must file original copy of will (if applicable) and the petition shall include the names, addresses, and relationships of all heirs and/or beneficiaries. 2. Personal Representative Appointment All heirs and/or beneficiaries must be sent a copy of the petition. At the hearing on the petition, a Personal Representative (“PR”) will be appointed and the estate is opened. A Personal Representative Oath must be signed and filed. 3. Letters Are Issued If the decedent died with a will, Letters Testamentary will be issued to the PR. If the decedent died without a will, Letters of Administration will issue. Once Letters are issued, the PR will begin identifying the decedent’s assets and any of the decedent’s interest in real property. 4. Execute Cost Bond The PR must execute a Cost Bond to obtain the Letters, which ensures the payment of court costs. 5. Open Estate Bank Account The PR will open an estate bank account and apply for an Estate Taxpayer Identification Number (EIN) on the IRS’s website. All cash assets of the estate and any proceeds from the sale of any estate property will be deposited into the estate bank account. 6. Execute Affidavit of Notice to Heirs The PR must sign and file an Affidavit of Notice to Heirs and/or Beneficiaries within sixty (60) days of their appointment. The Affidavit must include the names of all heirs and/or beneficiaries under the Will. 7. File TennCare Affidavit The PR must submit a Request for Release of Claim to the Division of TennCare, and must file TennCare’s Notice of Release of Claim with the Clerk. 8. File Inventory Unless waived by the will, an inventory of the estate’s assets must be filed within sixty (60) days of the appointment of the PR. A copy of the Inventory must be mailed to all interested parties. Alternatively, the heirs and/or beneficiaries can sign a Waiver of Inventory. 9. Notice to Creditors The Clerk’s office will mail a copy of the Notice to Creditors within four (4) weeks of the appointment. A copy of this Notice must be mailed to all known creditors. The creditors have up to a year to file a claim, and the estate must be opened for a minimum of four (4) months before the estate can be closed. 10. File Estate Tax Return If the estate owes taxes, an Estate Tax Return must be filed with the IRS and the PR must file a copy of the Tax Receipt or Certificate with the Clerk indicating that all inheritance taxes have been paid. The PR should consult a CPA to determine if an estate tax return is required. 11. Interim Accountings Depending on the County your probate case is in, an Interim Accounting may be due if the estate remains open after fifteen (15) months from the PR’s appointment. Annual Accountings will be due thereafter. 12. File Final Accounting Before an estate can be closed, the PR must file either a Final Accounting or Statements in Lieu. A Final Accounting shows in detail that all heirs and/or beneficiaries received what they are entitled to. Alternatively, all heirs and/or beneficiaries can agree to execute Statements in Lieu of a final accounting that demonstrate that everyone has received what they were entitled to. 13. Close the Estate Once all creditor claims have been released, all estate assets have been distributed, and a Final Accounting or Statements in Lieu have been filed, the estate can be closed. Once the estate is closed, no other actions can be taken on behalf of the estate by the PR.

What happens when DCS substantiates an individual as a perpetrator of child abuse? When a Tennessee Department of Children's Services investigation substantiates a claim that an individual is a perpetrator of abuse, they may be placed on the TN Child Abuse Registry, which can have significant employment ramifications. Under Rule 0250-07-09-06 of the TN DCS Child Protective Services Rules, a report against an alleged perpetrator is classified as substantiated if DCS determines, by a preponderance of the evidence, considering entire record, that an individual committed any form of abuse/neglect. An individual who is an alleged perpetrator of abuse can challenge this finding. How does a challenge of a substantiation as perpetrator of abuse begin? Within 10 business days after the Department has closed its case and classified the individual as a perpetrator of abuse, the Department notifies the individual of this classification under the Department’s rule 0250-07-09-07. If they determine that the individual poses an immediate threat to the health or safety of a child to whom the individual has access, the department shall notify both the alleged perpetrator and the organization the alleged perpetrator is associated with under the Department’s rule 0250-07-09-08. The notification from the Department on the classification of their file informs the individual that they have the right to request a formal file review to determine if the report has been properly classified as substantiated. The alleged perpetrator has 20 days to request the formal file review. If the individual fails to submit the request for the file review within the 20-day period, absent a showing of good cause, the classified report becomes final, and the individual’s identity is placed on the non-public registry under the Department’s rule 0250-07-09-07. The alleged perpetrator has the right to submit additional written information for the file review within 30 days of receiving the notification. If there is no additional information submitted within 30 days, the review will be conducted without the information. This review will be completed within 90 days and at the end of the review, the individual will get written notice of the findings. Under the Department’s rule 0250-07-09-10, a stay or a temporary pause will be issued if the individual is arrested or indicted on criminal charges that are derived from the same alleged incident, if the individual is the subject of other administrative or civil proceedings that are derived from the same alleged incident, or if the individual pleads guilty to any charge, including reduced charges, arising out of this same incident. What happens if someone does not agree with the findings of the review? An alleged perpetrator of abuse has the right to a hearing before an administrative law judge if they do not agree with the findings of the formal file review, under the Department’s rule 0250-07-09-09. The individual must request this hearing within 20 days of notification of the findings. The department will not disclose the classification of the individual as a perpetrator of abuse until after this 20-day period has passed. If the individual fails to request the hearing within 20 days, absent good cause, they waive their right to a hearing and the individual gets placed on the non-public registry. If the individual requests the hearing, the hearing will be held before a DCS administrative law judge, and an initial order will be entered within 120 days. The sole issue for the administrative law judge to determine is whether, by a preponderance of the evidence considering the entire record, DCS proves that the individual committed any form of abuse or neglect under the Department’s rule 0250-07-09-11. If the administrative law judge concludes that a preponderance of the evidence does not support the conclusion that the individual committed an act of abuse, the report will be classified as unsubstantiated. If report is classified as unsubstantiated, the department will not release information from its records identifying the individual as a perpetrator of abuse and, if the department previously disclosed to any organizations/person that the individual was under investigation, the department will immediately notify that person that the report was unsubstantiated. Our attorneys are experienced at challenging attempts by DCS to substantiate individuals as perpetrators of abuse. Call us right away.

A child may be deemed “dependent and neglected” if the Court believes that the child’s safety, health, or well-being is at risk due to improper care, lack of supervision, alleged abuse, lack of medical care, or improper living conditions. Under T.C.A. § 37-1-102, a Dependent and neglected child is defined as a child: without a parent or legal guardian; whose parent or guardian is unfit to properly care for the child; who is under unlawful or improper care, supervision, custody, or restraint by any person or organization; who is unlawfully kept out of school whose parent or guardian neglects or refuses to provide necessary medical care for the child; who is found in place of violation of the law because of lack of supervision; who is in under improper control as to injure or endanger the morals or health of the child or others; who is suffering from abuse or neglect; who has been in the care of an angency or person not related to the child (by blood or marriage) for a continuous period of six or more months (in the absence of a power of attorney or court order) and that person or agency has not initiated judicial proceedings seeking legal custody or adoption of the child; who is or has been allowed to engage in prostitution/pornography and whose parent or guardian refuses to protect the child from such activity; who has been left in the sole financial and physical care of a related caregiver for more than eighteen consecutive months by the child’s parent or legal guardian and the child will suffer harm if removed from the continuous care of such relative. How does the process work? These cases typically arise from DCS investigations, reports from schools, doctors, or other professionals, family disputes, or allegations of abuse or neglect. A Dependent and neglect case begins by the filing of a petition by anyone with knowledge of the alleged facts or is informed and believes the facts to be true can file the petition under T.C.A. § 37-1-119. Prior to the preliminary hearing, a child can be removed from the custody of a parent or legal guardian. Removal must be pursuant to a Court order, based upon sworn petition or sworn testimony, that the child is dependent, neglected or abused; and removal of the child is required because the child is subject to an immediate threat to their health or safety and waiting for the preliminary hearing would likely result in severe or irreparable harm. If the child is taken into custody before the preliminary hearing, the hearing will happen within 72 hours of removal. T.C.A. §37-1-117. At the preliminary hearing, for removal of the child from custody of a parent or guardian, the Court must find that there was probable cause that the child was abused/neglected and the child is subject to immediate threat to their safety and severe/irreparable harm will occur and there is no less drastic alternative to removal. T.C.A. §§ 37-1-114, 37-1-117. An Adjudicatory Hearing, which is a trial on the merits of the Petition, will occur to determine if there are findings of fact to support the Dependent and neglect allegation. Then, there will be a Dispositional Hearing where the arrangements for custody of the child will be determined. These can include placement with parents subject to conditions, temporary custody to a qualified individual, or custody to DCS. Then visitation and permanency plans can be decided all in the child’s best interest. T.C.A. § 31-1-130. How we can help: We represent parents, guardians, and relatives in Dependency and Neglect proceedings throughout Middle Tennessee. We protect our clients’ rights and work towards a safe reunification whenever possible. Dependency and Neglect proceedings can move quickly and we assist clients at every stage of the process including responding to DCS investigations and interviews, representation at emergency or adjudicatory hearings, challenging and defending against allegations of abuse or neglect, advocating for reunification and family-centered solutions, ensuring court-ordered services are fair, and protecting parental rights. If you are facing a Dependency and Neglect case, call us right away. Do not face the system alone.

What documents should I have in place before I die? There are four primary end-of-life documents the average person should have in place. The first and most recognized is a Last Will and Testament. Upon your death, this document will dictate who you want to settle your affairs after you die. That individual, known as the Personal Representative, will then follow the directions you've provided in your will for how your property and belongings should be distributed. Your will can also include a testamentary trust provision, which would dictate how any inheritance given to minor children upon your death should be managed on their behalf. Finally, a will can also contain guardianship language for minor children. While guardianship language in a will is not binding on the court, such language is usually followed if done correctly. The next end-of-life document everyone should have in place is a Durable Power of Attorney. Powers of attorney allow the person listed as POA to make many different types of decisions on an individual's behalf, such as financial and real estate decisions. Typically, a general power of attorney no longer has effect upon an individual's incapacity, whether physical or mental. However, a durable power of attorney extends beyond that incapacity and remains in place until that individual's death. There are two primary types of durable POAs. The more traditional durable power of attorney is a "Springing Durable Power of Attorney." This means that this type of POA does not take affect until the individual has become incapacitated. The other type of durable POA is a "Durable Power of Attorney Effective Immediately." This means that the POA takes effect at the moment it was signed, and remains in effect through the incapacity and until the individual's death. There are advantages and disadvantages to both, so discuss your particular situation with your attorney. The third document everyone should have prepared is an Advance Care Plan. This is also known as a "Living Will." Sometimes referred to as "pull-the-plug language," an Advance Care Plan will determine what decisions your healthcare providers will make about your medical care in the end stages of your life. There are a variety of scenarios this document contemplates, such as whether or not you want to receive life support or the assistance of a ventilator if you are unable to breath on your own. Every individual's decisions are unique and their choices often surprise their loved ones. One of the most loving things an individual can do for their loved ones is to not force them to make these decisions on their own. It's a relatively simple document, but one that carries significant weight. The final document we recommend everyone have in place is the Appointment of a Healthcare Agent. While the Advance Care Plan above does incorporate the appointment of a healthcare agent, this document stands alone and allows another individual that you've named to make healthcare decisions on your behalf, in the event you're unable to do so on your own. While none of these documents are particularly fun to think about, it's crucial that you get them in place before you need them. All too often, loved ones who have every intention of taking care of these needs pass away before ever doing so. In many cases, what they leave behind becomes a point of contention between family members who disagree about what should be done, rather than focusing on fond memories. In short, the time to take care of your end-of-life planning is now! For more information about how to create a valid will, check out our additional Education Center post here.

Domestic Assault, Orders of Protection What is an Order of Protection? An Order of Protection is an order signed by a judge or magistrate, which is intended to protect victims of domestic abuse, sexual assault, or stalking. While you may be tempted to reach out to the person who filed an Order of Protection against you, it is essential that you have no contact with him or her. If an Order of Protection has been granted by a judge or magistrate against you on a temporary basis (ex parte), violating that Order of Protection will result in your arrest and a new criminal charge. In short, you will go to jail, no questions asked. So don’t do it! Who can Request an Order of Protection? An Order of Protection can be requested by anyone who is a “domestic abuse victim.” T.C.A. §36-3-601 defines domestic abuse victim as adults or minors who: Are current or former spouses; Live together or who have lived together (including roommates); Are dating or who have dated or who have or had a sexual relationship; Are related by blood or adoption; Are related or were formerly related by marriage; or Adults or minor children of a person in a relationship that is described above. What is the Process to Obtain an Order of Protection? An alleged victim fills out a Petition requesting the judge or magistrate to issue an Order of Protection. The judge or magistrate reviews the Petition and will likely grant an ex parte Order of Protection. The ex parte Order of Protection is a temporary Order of Protection that prohibits the other person from contacting the petitioner for any reason whatsoever. A hearing before a judge on the ex parte Order of Protection will be set within 15 days of the issuance of Order for a final determination. If the request is not granted ex parte, a hearing will still be scheduled in front of a judge to make a final determination. At the hearing, the court will either extend the Order of Protection for up to one year or it will be dismissed. At the hearing, the petitioner must prove by a preponderance of the evidence, or more likely than not, that the facts written in the Petition occurred. The court will hear from the Petitioner, Respondent, and any witness brought by the parties. The respondent then has the opportunity to put on proof to defend against the allegations being made by the petitioner. An Order of Protection can have serious ramifications, including: Ordering you to leave your home; Affect your custody or visitation rights with your children; Prevent you from owning or possessing firearms; Impact your ability to rent an apartment or home. If you have an Order of Protection pending against you in Nashville or Middle Tennessee, it's important that you hire an attorney immediately to defend your rights.

Who can be charged with Domestic Assault? In Tennessee, you can be charged with domestic assault for committing assault against anyone deemed a domestic abuse victim. Who is a domestic assault victim? Tennessee law has a broad definition which goes far beyond just a romantic relationship. A domestic abuse victim can include any of the following: Current or former spouses Roommates People who are dating or had a previous sexual relationship Anyone related by blood or adoption Current or former in-laws An adult or minor child of a person that is in a relationship with anyone included in the above categories Is it their word against mine? Simply put, yes. If there are no other witnesses, it is the alleged victim’s word against yours. When an officer is called to a scene for an allegation of domestic assault, most police departments have a policy which states that the preferred response is to make an arrest. The officer’s goal is to determine who the “primary aggressor” is, then place that person under arrest. If the only witnesses are the alleged victim and the accused, the result is a case of “he said, she said.” Penalties for domestic assault can be severe. Initially, any domestic assault arrests require the accused to be held for a minimum of 12 hours in jail before they are able to post bond. This alone is a traumatic experience for most people accused of domestic assault. A conviction for misdemeanor domestic assault can result in possible jail time of up to 11 months and 29 days, result in the loss of your ability to ever possess a firearm, and the conviction can never be expunged. Given what’s at stake when you are charged with these types of crimes, it’s important to hire an attorney immediately to begin preparing your defense.

An uncontested divorce in Tennessee is a divorce where both spouses agree, or come to an agreement, on all of the major terms of the divorce. Generally, an uncontested divorce will be on the grounds of irreconcilable differences, or in some cases, for being separated for more than two years. An uncontested divorce is the most amicable type of divorce and can save spouses both a lot of time, money, and heartache. However, this does not mean that uncontested divorces always go as planned. Even if you meet the requirements to file for an uncontested divorce, it is still recommended that you hire a lawyer. A qualified divorce attorney can ensure that the legal requirements for a divorce are met while still keeping your best interests in mind. Divorce attorneys have experience negotiating divorce settlements, known as Marital Dissolution Agreements, and even in an uncontested divorce, there can be disagreements that require a compromise before the divorce can be finalized. An experienced divorce attorney can take the stress of navigating the complex legal system out of your hands and ensure all of the correct documents are filed and served properly. Having a lawyer to review the final paperwork before submitting it to the court ensures that you fully understand the consequences of the divorce agreement you are entering with your spouse.

Under Tennessee Code Ann. §55-10-401, “It is unlawful for any person to drive or to be in physical control of any automobile…(1) while under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system, or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself that the driver would otherwise possess; (2) the alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (0.08%) or more . . .” So after you’ve been charged with a DUI first offense, what does this mean for you? In Tennessee, a first offense for a DUI is punishable by a minimum of 48 hours to a maximum of 11 months and 29 days in jail. However, if your BAC is higher than a .20, the minimum jail sentence increases to 7 days. You may also be required to complete an Alcohol Safety School and Victim Impact Panel program by the Court. In addition to jail time, there is a minimum fine $350 for a DUI first offense, in addition to court costs. Your driving privileges will also be revoked for one year. However, you can apply for a restricted license with an ignition interlock device if your DUI was an alcohol related offense. If your offense was only drug related, you can apply for a restricted license with geographic restrictions. In addition to the criminal penalties, you may be required to purchase expensive SR-22 insurance, and the DUI could show up on background checks later on. It is important that your criminal defense attorney verifies that the police followed the proper law and procedures during the DUI investigation and arrest. Any mistakes made by the officers could affect whether or not there was sufficient probable cause for your arrest, or whether any evidence obtained can be used against you. How DUI cases are handled varies greatly depending upon the county your case is in and the local practices of the District Attorney’s office. That’s why it is so important to hire a criminal attorney that knows Tennessee laws and understands local practices in order to receive the best possible outcome for your DUI first offense. If you’ve been charged with a DUI, call our offices at (615) 649-0110 to ensure you receive a fair outcome in your case. Click here for more DUI related education center posts.

Should I agree to take a breath or blood test? Once an officer has determined that he or she has probable cause to believe that you are driving under the influence, the officer may ask you to submit to a chemical test to determine your blood alcohol concentration (BAC). This typically occurs after field sobriety tests have been conducted (see post on field sobriety tests). Chemical tests are conducted in the form of either a breathalyzer test or a blood test. The results of these tests could help you prevent an arrest or provide a defense for your case, if your BAC is below 0.08. On the other hand, you could also be voluntarily giving prosecutors evidence which will be used to convict you. In fact, if your BAC result is above 0.2, your statutorily required minimum jail sentence may increase from 48 hours to 7 days. So, can you refuse to submit to these tests? Yes. You have the right to refuse to allow an officer to conduct breath or blood tests. However, there will be negative legal consequences if you choose to do so. Under the Tennessee Implied Consent Law, if you refuse a breath test, there is an automatic penalty against you. If you have not previously violated the Implied Consent Law, the penalty is the loss of your driver’s license for one year. You will be able to apply for a restricted license during that period, but you will be required to pay for and install an ignition interlock device on your car. However, this is considered a civil penalty and not a criminal conviction. It is also important to remember that the arresting officer must inform you of these consequences before any test is administered. If an officer fails to inform you of these penalties, your attorney may be able to suppress the results of any breath tests you performed. Regarding blood tests, however, things get a little more complicated. Until recently, an individual who refuses a blood test could not be charged with an implied consent violation. Our state and Federal courts have long since recognized that the level of intrusion for a blood draw is substantially higher than that of a breath test. However, a recent change in Tennessee law (T.C.A. §55-10-406) provides that someone who refuses a blood test can now be charged with an implied consent violation. The problem with this new law is that it is in direct contradiction to Tennessee Court of Criminal Appeals holding in State v. Henry, 539 S.W.3d 223 (Tenn. Crim. App. 2017). The Court in Henry held that Implied Consent does not justify a warrantless blood draw under the U.S. and TN constitutions. Thus, while the statute may have changed, it is likely not enforceabe. Nonetheless, any officer who believes there is probable cause for a DUI arrest can easily obtain a search warrant for a blood test, and should do so. Such a search warrant would absolve any implied consent violation. Likewise, any blood evidence that is obtained without consent and without a search warrant should be suppressed and inadmissible, under most circumstances. Even when a search warrant is obtained, time is usually your friend in these matters. There is no harm in requiring an officer to follow the law before obtaining your blood sample. Additionally, blood tests are typically a more reliable and more precise measurement of BAC, if the blood draw and lab tests are performed accurately. This is great to know, but what do I do? The problem with answering this question is that it’s a judgment call, and an impaired person may not exercise the best judgment. As a general rule, if you are suspected of DUI and you honestly believe you have not had too much to drink and you do not feel impaired, it may be beneficial for you to submit to either a breath or blood test. Even if you are slightly over 0.08, a low result may assist you in reaching a favorable settlement in your case, depending on the jurisdiction you are arrested in. However, if you know that you had too much to drink and shouldn’t have been driving, it does nothing but hurt your case to voluntarily submit to a chemical test. You would only be making matters worse for yourself. It goes without saying, but the best advice I can give when I’m asked this question is to avoid driving while impaired in the first place, and take a Lyft or Uber. An impaired person can rarely be trusted to make the best decisions when it counts the most.