Detailed Answer
Short overview: When someone files a petition in Tennessee probate court asking for possession and control of estate property, the court may grant temporary or permanent control to a personal representative, a creditor, or another party. If you believe the petition is improper, you can challenge or seek dismissal by contesting the petition on procedural or substantive grounds and asking the court to deny the relief. The steps below explain how this typically works in Tennessee, what legal grounds exist, and what evidence and filings are most effective.
What the petition usually asks for
Petitions for possession and control commonly ask the probate court to: (1) permit a person to take custody of estate assets, (2) allow a proposed personal representative to exercise authority, or (3) authorize an interested party to collect or safeguard property pending administration. The form and substance of the petition vary by county and by the relief requested.
Common legal reasons to challenge or move to dismiss
You can challenge a petition in Tennessee for one or more of the following reasons:
- Lack of jurisdiction: The probate court lacks subject-matter jurisdiction over the property or the requested relief.
- Lack of standing: The petitioner is not an interested party under Tennessee law (e.g., not a creditor, beneficiary, or properly appointed representative).
- Failure of notice: Required notice to beneficiaries, heirs, or creditors was not given in accordance with Tennessee law or local probate rules.
- Improper appointment or qualification: The petitioner has not been appointed as personal representative or lacks letters testamentary/administration required to control assets.
- Property not subject to probate: The assets are non‑probate (joint tenancy, payable-on-death accounts, trust property, life-insurance proceeds with named beneficiaries) and therefore not controlled by the petition.
- Insufficient factual basis or fraud: The petition misstates material facts, omits key facts, or is supported by fraudulent documents.
- Statutory noncompliance: The petition does not comply with Tennessee probate statutes or local rules (e.g., required affidavits, bond, inventory).
Step-by-step process to challenge or seek dismissal
- Obtain and read the file: Get a copy of the petition and all attachments from the probate court clerk. Read the petition, supporting affidavits, and the court file to identify the relief requested and the factual assertions.
- Identify who must be notified: Verify whether you are a named beneficiary, heir, or creditor. Tennessee law and local probate rules determine who must receive notice of the petition.
- Check the petitioner’s authority: Confirm whether the petitioner has letters testamentary or letters of administration, or whether they are merely asking for interim custody. If they claim to be a personal representative, ask for proof of appointment.
- File a written response or objection: Most probate courts require a written answer, objection, or motion. Title your filing clearly (for example, “Objection to Petition for Possession and Control” or “Answer and Motion to Dismiss”). State the facts you dispute and the legal grounds for dismissal. Request a hearing.
- File a motion to dismiss if appropriate: If the petition lacks jurisdictional basis, standing, or statutory compliance, move to dismiss for lack of jurisdiction or failure to state a claim. If the petition is based on fraudulent papers, raise that in the objection and attach any supporting evidence.
- Seek temporary injunctive relief if assets are at risk: If the estate property is in danger of being dissipated or removed, file a motion for temporary restraining order (TRO) or preliminary injunction asking the court to preserve the status quo until the dispute is resolved.
- Request discovery: If facts are disputed, ask the court to allow discovery (document requests, subpoenas, depositions) to obtain evidence from the petitioner.
- Prepare for the hearing: Organize documentary evidence (deeds, account statements, wills, beneficiary designations), witness statements, and a concise legal memo explaining why the petition should be dismissed.
- Consider procedural remedies: If the petitioner failed to provide proper notice or failed to comply with local rules, ask the court to deny or continue the petition until requirements are met.
Practical defenses and evidence to gather
- Title records, deeds, and account statements showing ownership or beneficiary designations.
- Any will, codicil, trust documents, or letters testamentary/administration.
- Correspondence showing notice (or lack of notice) and communications about the decedent’s assets.
- Affidavits from family members or caretakers about who had and should have control of property.
- Evidence of fraud, forgery, or undue influence if relevant.
Possible outcomes
- The court can deny the petition and leave the property as-is (or order turnover to the proper party).
- The court may require the petitioner to post a bond or provide additional safeguards before giving control of assets.
- The court may grant temporary possession but schedule a full hearing on the merits.
- The court can dismiss or continue the petition if procedural defects exist (lack of notice, improper service, lack of jurisdiction).
Tennessee-specific rules and resources
Probate in Tennessee is governed by Title 30 of the Tennessee Code. For the statutes that govern probate procedure and appointments, see the Tennessee Code (Title 30 – Probate Procedure): Tennessee Code, Title 30 — Probate Procedure. For contested matters, many procedural points mirror court civil practice; review the Tennessee Rules of Civil Procedure here: Tennessee Rules of Civil Procedure. Also consult your local probate court’s rules and forms; those rules control filings, service, and hearings in that county.
When to get a lawyer
Contesting a petition can require prompt, technical filings and evidence. Hire a Tennessee probate attorney if you need help (for example) locating statutory authority, preparing and filing an objection, seeking emergency injunctive relief, conducting discovery, or presenting evidence at hearing. An attorney can also advise whether settlement or mediation is a reasonable alternative.
Disclaimer: This is general information only and not legal advice. I am not a lawyer. Laws change and outcomes depend on specific facts. Consult a licensed Tennessee attorney for advice about your case.
Helpful Hints
- Act quickly: probate matters move fast. Missing a deadline or failing to object in time can waive your rights.
- Preserve evidence: save deeds, statements, beneficiary forms, communications, and photographs of property.
- Do not remove or destroy estate property: that can create criminal or civil liability and hurt your position in court.
- Ask the clerk for local forms and filing requirements: counties may require specific forms or captions for probate filings.
- Check whether the property is non‑probate: joint accounts, TOD accounts, trusts, and named beneficiaries often bypass probate and make the petition improper.
- Consider a limited retention order or bond request: ask the court to require the petitioner to post a bond before allowing control of significant assets.
- Explore alternative dispute resolution: mediation can resolve contested possession disputes faster and cheaper than a full hearing.
- Keep communications formal: document communications with the petitioner, beneficiaries, and the probate court in writing.