A variety of things can stand in the way of properly offering a will for probate or suing for breach of duties to a trust. One specifically of utmost importance is the statute of limitations. A statute of limitations is a statute, which prescribes a period, normally several years, which limits the time in which one can bring a cause of action. The prescribed time varies for each type of cause of action, and normally begins when the complaint for that action is filed with the court. Even in the subsets of probate law, however, there are varying requirements for each.
Under Tennessee law, all actions or proceedings to set aside the probate in common form of any will must be brought within two years from the entry of the order admitting the will to probate, or it is forever barred. To be “barred” means this cause of action can never be brought in court again and you can no longer obtain legal recovery. One general exception to this rule applies to those under the age of 18 or those who have been adjudicated incompetent.
If a will is being submitted for probate in solemn form then Tennessee law generally provides that it must be contested prior to the court admitting the will for probate. As such, if a beneficiary believes a will contest is appropriate then they must act immediately if it is being submitted for probate in solemn form. Otherwise, their rights to contest the will may be barred forever.
The statute of limitations varies for trusts. In Tennessee, a person may begin a judicial proceeding to contest the validity of a trust that was revocable immediately preceding the settlor’s death within either two years after the settlor’s death or 120 days after the trustee sent the person a copy of the trust instrument and a notice, whichever occurs earlier. The notice must inform the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.
But what happens to the statute of limitations when someone thinks that the fiduciary of the trust is acting inconsistent with the terms of the trust? A beneficiary of the trust, trustee, trust advisor, or trust protector can commence a proceeding against a trustee, former trustee, trust advisor, or trust protector, but must do so within one year of the date the person bringing the action was sent information that indicated there was a potential claim for breach of trust or one year from the date that person actually knew of facts indicating a potential claim for breach of trust. If there is no knowledge of the breach, then the statute of limitations extends to three years.
However, if a report is sent to a beneficiary or its representative, the beneficiary must begin a proceeding against that trust advisor or trust protector for breach of trust within one year after the date the report was sent that indicated the existence of a potential claim for breach. If there is no knowledge of such breach, then the statute of limitations extends to three years.
This is a complex area of the law as it shows there are many people who may bring a cause of action for breach of trust or for probating a will, and many people against whom an action can be brought. The law is very specific about who has these rights, and because there is such a short time to bring these actions, it is vital that you consult an attorney knowledgeable of these rights to ensure that you are not forever barred from obtaining recovery.