Probate and Nonresident Fiduciaries

By Matthew D. Faulk - March 19, 2021

Recently, a daughter reached out to me with questions about the necessity of probate now that her mother, a longtime Nashvillian, had passed away. During the conversation, the daughter shared she was not a resident of Tennessee but lived with her family in the Pacific Northwest. The topic of her serving as the potential estate’s fiduciary came up and she asked if it was even possible for her to serve as the estate’s fiduciary.

Section 35-50-107, Tennessee Code Annotated states:

Any person who is not a resident of this state or any corporation that is authorized to exercise fiduciary powers, but is not authorized to do business in this state and does not actually maintain an office in this state, shall not be appointed or allowed to serve as trustee of a corporate or personal trust, personal representative of an estate, guardian, conservator for an incompetent person, guardian for a minor or in any other fiduciary capacity, unless there is also appointed as a fiduciary to serve with such nonresident fiduciary, a person resident in this state or corporation authorized to do business in this state and that maintains an office in this state, except as provided in subdivision (a)(2). In the event the resident cofiduciary ceases for any reason to act, then a new resident cofiduciary shall be appointed.

Well, that seems to be a clear answer. The statute, however, continues to set out quite a number of exceptions to this general prohibition, including that any resident or nonresident person may serve as a personal representative of the estate of a decedent. So, this daughter could serve as a potential fiduciary under her mother’s estate.

Of course, the nonresident fiduciary may have to post a bond with the probate court and must appoint the Tennessee Secretary of State as the agent for service of process. The form used to appoint the Secretary is filed with that office and can be found here.