Detailed Answer
If a deceased parent named one child as the executor (personal representative) in a valid Tennessee will but that child refuses to serve, the probate court will not be forced to appoint the person who was named first. Tennessee law allows the court to appoint someone else to act. The practical path to become the appointed personal representative depends on whether the will names an alternate executor and whether interested persons agree.
Key points you need to know:
- When the named executor declines, resigns, is incapacitated, or otherwise fails to qualify, the court may appoint a different person to administer the estate.
- If the will names an alternate executor (a backup), the court will usually give that alternate the first opportunity to serve.
- If there is no alternate named in the will, or the alternate also cannot or will not serve, the court will appoint a suitable person under Tennessee’s probate rules and statutes.
What you should do to seek appointment:
- Find and secure the original will and the death certificate. The original will is required to open probate.
- Confirm whether the will names an alternate executor. If so, that person is typically next in line. If you are the alternate, file the probate paperwork asking the court to issue letters testamentary to you.
- If no alternate is named, file a petition with the probate court in the county where the decedent lived asking the court to admit the will and appoint you as personal representative (often called “administrator with the will annexed”). The court will notify heirs and may hold a short hearing.
- If the named executor has expressly refused in writing (a formal renunciation), file that document with the court. A written renunciation makes the process smoother. If the named executor refuses but won’t sign a written renunciation, notify the court in your filing — the court has procedures to proceed despite a refusal to act.
- Be prepared to explain to the court why you are a suitable person to serve (ability to carry out duties, location, lack of conflicts, criminal background, etc.). Tennessee courts consider fitness and willingness when selecting a personal representative.
Where the law is written down: Tennessee’s probate and estates provisions are contained in Title 30 of the Tennessee Code. The probate court’s website explains local procedures and provides contact information for filing. For general statutory authority see the Tennessee Code (Title 30): Tenn. Code Ann. Title 30, and for practical probate-court information see the Tennessee Courts probate page: Tennessee Courts – Probate Court.
Common outcomes the court may enter:
- If you are the named alternate in the will, the court will usually issue letters testamentary to you after standard filings and notice.
- If the will has no alternate, the court may appoint you as administrator with will annexed if you have priority or are otherwise suitable, especially if other heirs support you.
- If multiple heirs compete, the court may hold a hearing and decide based on statutory priority, competence, and the best interests of the estate.
Typical documents the probate court will require to appoint a personal representative:
- Original will (if there is one)
- Certified copy of the death certificate
- Petition for probate / petition for letters testamentary or letters of administration
- Renunciation by the originally named executor (if available)
- Acceptance or oath to qualify, and possibly a bond (unless waived by the will)
If the named executor actively objects to your appointment (beyond simply refusing to serve), the court will schedule a hearing. At that hearing the judge will consider the objections and the evidence about who should serve. Courts generally prefer someone who will administer the estate quickly and honestly and who has no conflicts that would harm beneficiaries.
When to hire an attorney
You can file for probate without an attorney in many Tennessee counties, but you should consider hiring a lawyer if:
- There is a dispute among heirs about who should serve;
- The estate includes complicated assets (business interests, out-of-state property, tax issues);
- The named executor refuses but also obstructs access to assets or refuses to deliver the will or other documents; or
- You are unsure how to complete the required filings and notices.
Even when hiring an attorney, you will still need to provide the court the original will and death certificate and handle basic estate tasks. An attorney can help prepare the petition, handle notice and bond issues, and represent you at any required hearing.
Disclaimer: This is general information about Tennessee probate practice and is not legal advice. Laws change and each situation is different. For advice tailored to your case, consult a licensed Tennessee attorney or contact the local probate court.
Helpful Hints
- Act promptly: gather the original will and several certified death certificates quickly. Many institutions require originals.
- Ask the named executor for a written renunciation if they will not serve. A signed renunciation speeds up court action.
- Call the local probate court clerk for a list of required forms and fees — clerks can often provide guidance on filing procedures.
- If multiple heirs support you, include written consents when you file; agreements from beneficiaries reduce the chance of contested hearings.
- Be ready to post a bond if the will does not waive bond; check whether the will contains a bond waiver clause.
- Keep careful records of communications, asset inventories, and receipts — the court will expect the personal representative to account for estate property.
- Consider mediation before litigation if heirs disagree — it can save time and cost compared to a contested hearing.
- Use trustworthy certified mail or court-approved methods for required notices to heirs and creditors.