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RULE 1. - RULES OF COURT: APPLICABILITY, PURPOSE AND DEFINITIONS
1.01 - Adoption of Rules
These rules replace all previous local rules. These rules are effective June 1, 2005.
1.02 - Applicability
a. General Applicability.
Unless otherwise indicated by a particular rule, Rules 1 through 8 apply to all types of cases in the Circuit, Chancery, Criminal and Probate courts in Davidson County. When a rule applies only to a particular type of case (e.g., civil cases or criminal cases), it applies to all cases of that type regardless of which court is hearing the case.
b. Rules Applicable to Criminal Cases Only.
Rules 9 through 17 pertain only to criminal cases unless expressly stated otherwise in these rules.
c. Rules Applicable to Civil Cases Only.
Rules 18 through 36 only pertain to civil cases unless expressly stated otherwise in these rules. Certain civil proceedings, such as domestic, probate, conservatorship, guardianship and administrative appeals have special procedures which control those cases. (See Local Rules 37, 38 and 39). If and to the extent these rules are inconsistent with such special procedures, the special procedures shall control.
1.03 - Purpose of Rules
These rules will be construed to secure simplicity in procedure,
fairness in administration, and the elimination of unjustifiable expense
and delay. The Judge or Chancellor will deviate from these local rules only
in the exceptional cases where justice so requires.
1.04 - Definitions
The following definitions apply to terms used in these rules:
Clerk: The Circuit Court Clerk, the Clerk & Master of the Chancery
Court, and the Criminal Court Clerk, as applicable, or their designees.
Calendar Clerk: The deputy clerk assigned to a particular division
Case Coordinator: The trial court staff member who coordinates judicial
Tenn. R. Civ. P.: Tennessee Rules of Civil Procedure.
Tenn. R. Crim. P.: Tennessee Rules of Criminal Procedure.
1.05 - Citation
These rules may be cited as "Local Rule §___________."
RULE 2. - THE PRESIDING JUDGE
The Presiding Judge, selected pursuant to T.C.A. § 16-2-509 and
Rule 11 of the Rules of the Supreme Court of Tennessee, will supervise
the administration of the trial courts.
RULE 3. - ASSIGNMENT AND DISPOSITION OF CASES
3.01 - Initial Assignment of All Cases
The Judges of the various courts will adopt a method for the initial
assignment of cases to a particular division or part and enter an order
to that effect. The clerk may not assign a case to a particular division
or part other than by using the method ordered unless instructed to do
so by the court.
3.02 - All Matters in the Same Division or Part
Once a case has been assigned, all matters in the case will be
heard in that division or part, except as referred to in Local Rule 27
for Circuit Court jury and nonjury cases.
3.03 - Interchange of Judges
When necessary for the efficient administration of justice, a Judge
may hear and determine any matter by interchange for another Judge without
the necessity of transferring the case from one court to another or from
one part or division to another.
3.04 - Transfer of Cases
The Presiding Judge may transfer a case from one court to another
or from one division to another. The Judges and Chancellors of the 20th Judicial District
may transfer cases among themselves by mutual consent except in cases of
recusal. It is not necessary that the parties or their counsel consent
to such a transfer.
3.05 - Motions to Transfer
A party requesting a transfer of a case will obtain a transfer
order from the court to which the case is assigned. If a motion to transfer
is prompted by a pending related case, absent exceptional circumstances,
the transfer must be assigned to the court with the oldest pending related or companion
3.06 - Consolidation of Cases
Cases must be assigned or transferred to the same division or part
before they can be consolidated. An Order to consolidate cases must be
obtained from the division or part to which the cases to be consolidated
RULE 4. - COURT SESSIONS
Regular sessions of court will open at 9:00 a.m. or at such other time
as the court directs. Judges and attorneys will be prompt at all sessions.
RULE 5. - CONDUCT OF COUNSEL AND OTHER COURT PARTICIPANTS
5.01 - Counsel of Record; Entry of Appearance
All counsel who have entered an appearance in a case will be counsel
of record. Entry of an appearance will be made in one of the following
a written request by counsel to the clerk that an appearance be entered;
the filing of pleadings;
the filing of a formal notice of appearance;
appearance as counsel at an arraignment;
appointment by the Court.
5.02 - Withdrawal of Counsel
No attorney may be allowed to withdraw except for good cause and by
leave of court upon motion after notice to all parties.
5.03 - Appearance Entered; Copies of Pleadings
If a party does not have counsel of record, copies of the pleadings
filed will be furnished to the party. If a party does not have counsel
of record, opposing counsel will call that fact to the attention of the
court before any action is taken on any pleading filed which substantially
affects the case.
5.04 - Conduct of Counsel
NBA PROFESSIONALISM COMMITTEE
LAWYER'S CREED OF PROFESSIONALISM
A lawyer owes to the administration of justice personal dignity, integrity
and independence and a duty to make the system of justice work fairly and
efficiently. In order to carry out that responsibility, a lawyer must comply
with the letter and spirit of the disciplinary standards applicable to all
lawyers, as well as conducting himself or herself in accordance with the
following Creed of Professionalism when dealing with a client, adverse
parties, their counsel, the Courts and the general public.
WITH RESPECT TO MY CLIENT:
I will advise my client of my adherence to this Creed;
I will be loyal and committed to my client's cause, but I will not
permit that loyalty and commitment to interfere with my judgment or
ability to provide my client with objective and independent advice;
I will endeavor to achieve my client's lawful objectives in all
matters of representation as expeditiously and economically as possible;
In approaching cases, I will counsel my client with respect to mediation,
arbitration, and other alternative methods of resolving disputes;
I will advise my client against pursuing litigation (or any other course
of action) that is without merit and against insisting on tactics which are
intended to delay improperly resolution of a matter or to harass or to drain
the financial resources of an adverse party;
I will advise my client that civility and courtesy are expected and are
consistent with zealous representation;
While I must abide by my client's decision concerning the objectives of
the representation, I nevertheless will counsel my client that a willingness
to initiate or engage in settlement discussions is consistent with zealous
and effective representation.
WITH RESPECT TO ADVERSE PARTIES AND THEIR COUNSEL:
I will conduct myself with candor, in a spirit of cooperation and
scrupulously observe all agreements and mutual understandings;
I will be courteous and civil, both in oral and written communications;
I will not knowingly make statements of fact or law that are untrue;
I will agree to reasonable requests for extensions of time or for
waiver of procedural formalities when the legitimate interests of my client
will not be adversely affected;
I will endeavor to consult with adverse counsel before making scheduling
decisions and before any required rescheduling, and I will cooperate with
adverse counsel when scheduling changes are requested;
I will not use litigation or any other course of conduct to abuse or
harass, such as seeking discovery which is clearly improper, abusive or
excessive, or seeking sanctions or disqualification unless it is justified
both by my client's lawful objective and by the interests of justice;
I will not use tactics which are intended to delay improperly resolution
of a matter or to harass or to drain the financial resources of an adverse
In all matters of legal representation I will conduct myself with
dignity, avoid making groundless objections and refrain from engaging in
acts of rudeness or disrespect, including making disparaging personal remarks
toward adverse parties, counsel and witnesses and making demeaning comments
regarding race, religion, national origin or gender.
I will not provide drafts of time sensitive documents or serve pleading, motions or briefs on another party or counsel at such a time or in such a manner as will unfairly limit the other party's opportunity to respond;
In business transactions I will not unreasonably quarrel over irrelevant matters of form or style, but will concentrate on matters of substance and content;
I will attempt to prepare and revise documents which correctly reflect the agreement of the parties, and will not purposely include provisions which have not been agreed upon or purposely omit provisions which are necessary to reflect the agreement of the parties;
I will clearly identify, for other counsel or parties, all changes that I have made in documents submitted to me for review;
Where consistent with my client's interest, I will communicate with adverse counsel in an effort to avoid litigation and to resolve litigation that has actually commenced;
I will not take action adverse to the interests of a party known to be represented by counsel without notice to adversary counsel sufficient to permit a response;
I shall respond promptly to attempts by other lawyers to contact me whether by telephone or by correspondence.
WITH RESPECT TO THE COURTS AND OTHER TRIBUNALS:
I will be a vigorous and zealous advocate on behalf of my client, while recognizing, as an officer of the Court, that excessive zeal may be detrimental to my client's interests as well as to the proper functioning of our system of justice;
I will treat with respect the Court, members of the jury, witnesses, adverse parties and adverse counsel;
I will voluntarily withdraw claims or defenses when it becomes apparent that they do not have merit;
I will make every effort to agree with other counsel, as early as possible, on a voluntary exchange of information and on a plan for discovery;
I will attempt to resolve, by agreement, my objections to matters contained in my opponent's pleading and discovery requests;
When hearings or depositions have to be canceled, I will notify adverse counsel, and, if appropriate, the Court as early as possible;
Before setting dates for hearings or trials (or if that is not feasible, immediately thereafter) I will attempt to verify the availability of key participants and witnesses so that I can promptly notify the Court and adverse counsel of any likely problem in that regard;
I will be punctual in attending Court hearings and depositions;
I will be candid with the Court at all times;
I will refrain from commentary that reflects or references race, religion, national origin or gender in a demeaning fashion.
WITH RESPECT TO THE PUBLIC AND TO OUR SYSTEM OF JUSTICE:
The law is a learned profession and I am committed to its goals of devotion to public service and improvement of the administration of justice;
I will keep myself current in the areas in which I practice and, when necessary, will associate with, or refer my client to counsel knowledgeable in another field of practice;
I will be mindful that the law is a self-regulated profession and it is my duty to report unprivileged knowledge of any violation of D.R. 1-102;
I will be mindful of the need to protect the interests of the public and promote the image of the justice system in the eyes of the public when considering methods and contents of advertising;
I will contribute my talents, time, resources and civic influence on behalf of those persons who cannot afford adequate legal assistance and those organizations which serve the public good;
I will give of my talents and time to the organized bar to better the professional education of the bar, assist in efforts to improve the law, aid in efforts to assist colleagues and to promote public understanding of the justice system.
5.05 - Setting Attorney Fees
Whenever it is necessary for the court to determine fees of attorneys,
the attorney will file an affidavit setting forth an itemized statement of the services rendered, the time, a suggestion of the fee to be awarded along with a statement of other pertinent facts including but not limited to that required by Tenn. Sup. Ct. R. 8, RPC 1.5, applicable case law, and such other information as may be requested by the court.
5.06 - Contacting Judge
Neither counsel nor a party to a pending action will communicate
ex parte with the Judge before whom the matter is pending except consistent
with the Rules of Professional Conduct and the Code of Judicial Ethics.
5.07 - Smoking
There will be no smoking in court or during the taking of any deposition.
5.08 - Noise Generating Devices
All cell phones or other noise generating devices shall be turned off in court or during the taking of a deposition.
RULE 6. - FILING AND SERVICE OF PAPERS
6.01 - Filing With the Clerk
All papers, including pleadings, motions, briefs, and proposed judgments
and orders, will be filed with or submitted to the clerk. Papers should
not be mailed to or left with the Judge except in the following circumstances:
when specificallly authorized by the Judge, or
to provide a courtesy copy for the Judge's review
6.02 - Certificate of Service
All papers must contain a certificate of service showing the date of service and the name of the person or persons served. The clerk may refuse to file papers without a certificate.
6.03 - Signature of Counsel
All pleadings, orders, briefs and other papers submitted for consideration by the court will be personally signed by at least one attorney of record in her/his individual name and will show the style and number of the case, the general nature of the paper filed, and the name, street address and telephone number of the attorney filing the pleadings, and the filing attorney's Tennessee Supreme Court Registration Number.
6.04 - Pseudonym
No case may be filed under a pseudonym absent court order. The motion to proceed by pseudonym must be accompanied by an affidavit stating specific facts explaining why anonymity of the party is necessary and facts sufficient to overcome the presumption of public access to the identities of litigants.
6.05 - Class Actions
In any case sought to be maintained as a class action the complaint shall bear next to its caption the legend "Complaint-Class Action." [Comment: See Rule 26.14 for further requirements.] The clerk shall bring the lawsuit to the attention of the Judge or Chancellor assigned the case.
6.06 - Information Available for Caselink Scanning and Redaction Option
At present only the Circuit Court has Caselink public scanning available. This rule, however, shall apply to all Clerks should scanning and public viewing capabilities subsequently become available in the Chancery and Criminal Courts.
Option for Redaction of Information
In order to maintain the privacy of persons involved in litigation before Davidson County trial courts, counsel or pro se litigants may submit the following information on the Clerk's Statistical Sheet Form: social security number, name of minor child, date of birth, financial account number, and home address.
When the following information is included in any document filed with the court, counsel or pro se litigants may redact information in the following manner, unless otherwise ordered by the court or required by statute. The Clerk will not review each document for compliance with this subsection.
The following information may be redacted from any document filed:
Social security numbers: If an individual's social security number is included in a document, only the last four digits of that number are required.
Names of minor children: If the involvement of a minor child is mentioned, only the initials of the child are required.
Dates of birth: If an individual's date of birth is included in a document, only the year is required.
Financial account numbers: If financial account numbers are relevant, only the last four digits of these numbers are required.
Home addresses: If home addresses are included in a document, only the city and state are required.
Statistical Sheet Forms for Specific Personal Information
The Clerk shall make available to counsel and pro se litigants forms which shall be titled "Statistical Sheet Forms." When a statute, rule, or other law requires a party to file personal information such as a social security number, address, date of birth, etc., the information may be provided on a separate "Statistical Sheet." The Clerk will place the "Statistical Sheet" in the case file where it will be available for on-site public inspection; the Clerk may make and retain digital copies of the "Statistical Sheet" but shall not make the document available electronically to the general public.
RULE 7. - PAPERS FILED IN TRIAL COURT
7.01 - Custody of the Files
The clerk will have custody of all papers and records of the court. Files may not be withdrawn by any person at any time absent court order. Depositions and records of administrative tribunals may be withdrawn with permission of the clerk. The clerk will furnish copies of the content of files at a reasonable cost. After final determination in a civil case, the parties have thirty days to withdraw exhibits and discovery materials. The clerk may destroy or dispose of exhibits not so withdrawn after appropriate notice to the parties.
7.02 - Papers, Documents or Files Under Seal
All papers, documents and files shall be available for public inspection except as specifically exempted by court order or statute. The motion seeking such an order must contain sufficient facts to overcome the presumption in favor of disclosure. [Comment: The standards relating to the appropriateness of sealing documents and/or court files is set forth in Ballard v. Herzke, 924 S.W. 2d 652 (Tenn. 1996)].
7.03 - Duties of Clerk: Habeas Corpus and Post Conviction
The Clerks of Court and Clerk and Master shall immediately notify the Judge or Chancellor to whom the case is assigned of the filing of any petition for habeas corpus or post-conviction relief and subsequent filings so as to insure compliance with T.C.A. § 29-21-108(a) and/or T.C.A. §§ 40-30-105 and 106.
RULE 8. - RECORDING OF COURT PROCEEDINGS
Audio-visual Recordings of Court Proceedings.
The Sixth Circuit Court has been authorized by the Supreme Court to use audio-visual recordings as the official record of court proceedings pursuant to Supreme Court Rule 26. Unless otherwise ordered by the affected court, no other court will record or utilize such audio-visual recordings as the official record on appeal, nor shall any court be required to maintain an exhibit list and trial log with respect to an audio-visual recording. The Clerks of Court and Clerk & Master shall not file or certify such recordings, except from the Sixth Circuit Court, as part of the record on appeal unless directed to do so by the court from which the appeal is taken.
Access to Courtroom Video Servers
No one except Judges, Chancellors, and full time court staff shall have access by password or otherwise to the video servers in any of the trial courts absent written authorization from the affected Judge or Chancellor.
RULE 39. - SPECIAL PROCEDURES FOR PROBATE MATTERS
39.01 - Attorneys:
With the exception of petitions by an adult to change his/her name and applications to open an estate pursuant to the Small Estate Exemption, all fiduciaries shall be represented by and all petitions and motions shall be filed by attorneys licensed to practice law in
Tennessee, except that attorneys not licensed in Tennessee may appear and file pleadings provided that they have complied with Rule 19 of the Rules of the Supreme Court of Tennessee, and further except that adult persons acting in their individual capacity may file pleadings and appear pro se before the Court. However, fiduciaries who are not attorneys may submit their annual and final accountings and apply for their annual and final fee requests without the intervention of their attorney.
An attorney who files a petition, opens an estate, or who is representing an Interested Party becomes the attorney of record for that party by filing a pleading or notice of appearance and shall remain attorney of record unless and until the Court grants permission to withdraw upon a showing of good cause pursuant to Local Rule 5.02. However, Guardians ad litem in conservatorships or guardianships shall automatically be relieved of their responsibilities upon the creation of conservatorships and/or guardianships unless the order expressly provides otherwise.
39.02 - Definitions; Service of Process; Notice; Interested Parties:
"Service of Process": When required by statute or these Rules, Service of Process shall be effected by service of the Petition and a Summons in conformity with the requirements of T.R.C.P. 4 and due process requirements.
"Notice": When required by statute or these Rules, Notice to all Interested Parties shall be given by mailing, faxing or hand delivery of the required documents to each Interested Party (or their attorney) in conformity with requirements of T.R.C.P. 5. If an Interested Party is a minor or incompetent person, Notice shall also be given to the legal guardian(s) and/or custodial parent(s) of the minor and to the conservator of an adult person. If Interested Parties are under disability and have no custodial parent, legal guardian or conservator, such shall be brought to the Court's attention. The foregoing notwithstanding and in addition to the written forms of Notice set forth above, Notice of the intent to file the initial Petition to admit a non-holographic will to probate to obtain Letters Testamentary may be given by oral notice, whether in person, by phone or otherwise. If a party announces in Court that oral notice was provided, written confirmation of prior oral notice shall be filed with the Clerk.
"Adversary Proceeding": Adversary Proceedings include but are not limited to Civil Actions as defined under T.R.C.P. 2 and proceedings to remove a fiduciary, surcharge a fiduciary, probate a lost or destroyed will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted share, and for revocation of probate of a will. Other proceedings may be declared Adversary Proceedings. Adversary Proceedings shall be prepared, discovery conducted, and tried as Civil Actions pursuant to the Tennessee Rules of Civil Procedure, Rules of Evidence and these Local Rules.
"Interested Parties": An Interested Party is a person or entity having an interest in a matter before the Court. Depending on the type of estate or matter at issue, an Interested Party may include a spouse, beneficiary, legatee, devisee, creditor, fiduciary, and next of kin. Next of kin are those persons entitled under T.C.A. § 31-2-104 to inherit as if the decedent died intestate.
1. In a decedent's estate, an Interested Party shall include:
In a solvent testate estate, the surviving spouse and all legatees, devisees and beneficiaries named in the testamentary instrument being offered or admitted to Probate;
In a solvent intestate estate, the surviving spouse and intestate heirs of the decedent as described at T.C.A. § 31-1-104.
In an insolvent estate or one that may become insolvent, whether testate or intestate, the persons set forth in (a) and (b) above and, in addition, creditors of the decedent whose claims may be adversely affected by a ruling on the matter(s) at issue.
In a matter contesting the validity of a testamentary instrument offered or admitted to Probate, the surviving spouse and intestate heirs of the decedent as described at T.C.A. § 31-1-104, all legatees, devisees and beneficiaries named in the testamentary instrument being offered or admitted to Probate, and any legatees, devisees, and beneficiaries of any preceding testamentary instrument to that being offered or admitted to Probate;
2. In a Conservatorship, Interested Parties include the spouse and next of kin of the respondent and the person(s) who have been primarily responsible for the respondent's person and/or finances.
3. In a Guardianship, Interested Parties include both parents of the minor, the next of kin if both parents are deceased, legal guardians and person(s) primarily responsible for the minor's person and/or finances.
4. In a proceeding to terminate a trust, Interested Parties include current income beneficiaries, remainder beneficiaries of the trust, all fiduciaries and the grantor, if living.
5. Notice and Service of Process need not be served upon an Interested Party who joins in a petition as a Petitioner or who files a sworn waiver or consent.
6. No action of Court shall be set aside due to the failure of an Interested Party to receive Notice unless the Interested Party shall timely appear and show substantial prejudice resulting from the lack of notice and a reasonable likelihood of prevailing on the merits.
39.03 - Estates of Decedents:
Petitions to Probate Wills, Codicils and other Testamentary Instrument: A verified Petition to probate a will, codicil, other testamentary instrument or to administer an intestate estate shall set forth such information as is required by statute and these Rules. In a testate estate the petition shall specifically include the names, and if known, addresses and relationships of all legatees and devisees under the testamentary instrument(s) and in addition thereto that of the surviving spouse and next of kin (even though not named in the will). The value of real and personal property to be administered need not be stated if bond is expressly waived and the named executor or alternate executor is willing to serve.
"Common Form" Proceedings: Petitions to probate in common form may be heard either by the Court or by the Probate Master. Petitioner is encouraged to give Notice to all Interested Parties prior to the hearing of the fact that the petitioner is presenting the will for probate. The Probate Master may hear these matters provided the petition and all accompanying documents are in proper order, as determined by the Probate Master, and there are no questions of law to be determined. If there is a question of law or if the Probate Master declines to hear the petition, the petition shall be heard by the Court.
"Solemn Form"Proceedings: Petitions to probate in solemn form must be heard by the Court. Service of Process shall be given as required by statute.
Holographic Will Proceedings: All petitions for the probate of holographic testamentary instrument(s) will be heard by the Court. Notice shall be given to all Interested Parties, including the surviving spouse and next of kin whether or not named as beneficiaries under the testamentary instrument(s), of the fact that the petitioner is presenting the will for probate. If Notice is not provided, bond may be required regardless of express waiver of such in the will. The testimony of witnesses concerning the handwriting of the decedent must be taken in open court. Upon a showing of good cause the Court may allow such evidence to be taken by affidavit or oral deposition.
"Proceedings to Administer Intestate Estates: Petitions to appoint an Administrator of an intestate estate may be heard by the Court or the Probate Master. Notice shall be given to all Interested Parties, including the surviving spouse and next of kin, of the fact that the petitioner is filing a petition to administer the estate of the decedent and that no will can be located. If Notice is not provided, bond may be required. The Probate Master may hear these matters provided the petition and all accompanying documents are in proper order, as determined by the Probate Master, and there are no questions of law to be determined. If there is a question of law or if the Probate Master declines to hear the petition, a hearing on the petition may be set on the court docket. The Petition shall state the approximate respective values of the real and personal property being administered if known, the names and addresses of the spouse and next of kin of the decedent, and whether bond, inventory and annual accountings are waived by written waivers from the spouse and all of the next of kin.
Small Estate Administration Proceedings: Estates to be administered under the provisions of T.C.A. § 30-4-101 et seq. (The Small Estates Act) may be heard by the Court or the Probate Master. Notice shall be given to all Interested Parties, including the surviving spouse and next of kin, of the fact the petitioner is filing a petition to be appointed personal representative of the estate under the small estate exemption. If Notice is not provided, bond may be required. The Probate Master may hear these matters provided the affidavit and all accompanying documents are in proper order, as determined by the Probate Master, and there are no questions of law to be determined. If there is a question of law or if the Probate Master declines to act upon the affidavit, a hearing on the affidavit may be set on the court docket. If bond is to be waived, consent forms executed by the spouse and all next of kin allowing the Affiant to administer the small estate without bond must accompany the affidavit.
39.04 - Trusts:
Termination of Trust: Petitions to terminate a trust must be heard by the Court. Service of Process shall be given to all Interested Parties who do not join in the petition. The petition shall be verified and set forth facts concerning the creation of the trust, the purpose of the trust, the beneficiaries of the trust and the nature of their beneficial interest, the reasons for the termination of the trust, the appropriate share of each beneficiary who is to share in the proceeds of the trust upon termination, and whether the termination has been agreed upon by all Interested Parties.
Other Trust Proceedings: Any ruling that may affect a substantive right of an Interested Party under a trust shall require due process of law prior to the determination of such rights by the Court. Whether motions for instructions, or requests for the Court to construe a trust, to determine whether a bequest has lapsed, or to remove or replace a fiduciary, etc. require the filing of a Petition with service of process or whether the matter may be attended to routinely upon routine Notice as distinguished from the requirements of Service of Process shall depend on the substantive nature of the underlying rights to be determined.
39.05 - Conservatorships:
Petition for Conservatorship: The petition shall be verified and contain the information required by statute and these Rules. Service of Process shall be provided to the respondent as required by statute and petitioner shall additionally provide Notice to all Interested Parties who do not receive notice from the Clerk. an order (in the form required by the Court) shall be submitted with the petition containing the appropriate blanks for the appointment of a Guardian ad litem and the setting of a hearing. the Court will appoint a licensed attorney as the Guardian ad litem and designate the hearing date. The Property Management Plan does not need to be filed with the Petition; however, the Property Management Plan shall be filed with copies provided to all Interested Parties including the Guardian ad litem no less than three (3) days prior to the hearing on the Petition, unless good cause is shown why such could not be done.
Orders Creating Conservatorship and Awarding Initial Fees: To expedite the issuance of Letters of Conservatorship, counsel for the petitioner may submit two orders, one pertaining to the appointment of the conservator and a second which pertains only to fees.
39.06 - Guardianships:
Petition for Guardianship: The petition shall be verified and shall contain the information required by statute and these Rules. Notice shall be provided to all Interested Parties. Unless the petitioner is a parent of the minor or is a court appointed guardian of the person, the Court will appoint a licensed attorney as Guardian ad litem. When applicable and to facilitate such appointment, an order (in the form required by the Court) shall be submitted for the appointment of a Guardian ad litem. If the petitioner is a parent of the minor or court appointed guardian of the person, the petitioner may set the matter for hearing prior to the appointment of a guardian ad litem; however, if the Court determines at the hearing that the appointment of a Guardian ad litem may be in the best interest of the minor, the matter shall be set for further hearing following the appointment of a Guardian ad litem.
Orders Creating Guardianship and Awarding Initial Fees: To expedite the issuance of Letters of Guardianship, counsel for the petitioner may submit two orders, one pertaining to the appointment of the guardian and a second which pertains only to fees.
39.07 - Sale of Real Estate:
Petition to Sell Real Property: Fiduciaries who desire to sell real property of a decedent or ward must file a verified petition to obtain Court approval. However, executors expressly authorized under a will to sell real estate are not required to obtain Court approval.
Decedent's Estate: The personal representative must file a verified petition which establishes that the personal property is insufficient to pay debts and/or costs of administration of the decedent's estate. Service of Process shall be given to all persons who would inherit the real property if not sold and all persons claiming an interest in the real property. Interested Parties shall receive Notice.
Conservatorship/Guardianship: The Conservator or Guardian must file a verified petition which establishes that the proposed sale is in the best interest of the ward or is necessary to pay the debts, taxes and/or expenses of the ward. Service of Process shall be given to all persons who have an interest in the real property. Interested Parties shall receive Notice.
Listing Agreement: Unless the Court expressly orders otherwise, if a petition to sell the real property of a deceased's estate or of a ward in a conservatorship or guardianship is granted, the order granting the petition shall authorize the fiduciary to market and/or to list the real property for sale by a licensed real estate agent or auctioneer. The auction and/or listing agreement and the resulting contract for the sale of the subject property must expressly state that the proposed sale of the property is Subject to Court Approval.
Motion to Approve Contract: Once a proposed contract to sell real estate is obtained, a motion must be filed and served pursuant to Local Rule 26 to obtain Court approval. Notice shall be given to all Interested Parties. A copy of the contract shall be attached to the motion along with a report of the assessed value of the property by the County Assessor of Property. The Court may also require one or more professional appraisals of the property. Any proposed contract of sale must be approved by the Court prior to closing.
39.08 - Name Change:
Adult: The verified petition must comply with the statute and shall state the full legal name of the Petitioner, all prior names by which the Petitioner has been known, the place of residence of the petitioner(s), the birth date, age, social security number of the individual whose name is to be changed, and the State where the original birth certificate was issued. Copies of the original birth certificate, social security card and official photo identification shall be submitted with the petition. The individual whose name is to be changed must appear in Court at the hearing.
Minor: The verified petition to change the name of a minor must comply with the statute and be sworn to and signed by both parents and include copies of the original birth certificates of the child and both parents, social security card and official photo identification of both parents, photograph of the minor and social security card of the minor, if any. Both parents and the minor must appear in Court. If both parents do not join in the Petition or if the identity or location of a parent is unknown, the petition must be specific as to all pertinent facts including all efforts to identify or locate the parent who did not join in the Petition. If the father is not identified on the birth certificate, legitimation proceedings must be completed prior to filing of a petition to change the name of the minor child. Service of process is required for any parent or guardian who does not join in the petition. The verified petition must establish by clear and convincing evidence that the proposed name change is in the best interest of the minor, otherwise the petition shall not be granted.
39.09 - Adversary Proceedings/Civil Actions:
Adversary Proceedings shall be prepared, discovery conducted and tried as Civil Actions pursuant to the Tennessee Rules of Civil Procedure, Rules of Evidence and these Local Rules. A party may initiate an Adversary Proceeding/Civil Action by the filing of a petition or complaint pursuant to T.R.C.P. 3, with service of process served on all defendants/respondents pursuant to T.R.C.P. 4. Additionally, the party initiating an Adversary Proceeding/Civil Action shall serve Notice on all other Interested Parties (those not plaintiff or defendant) that the Adversary Proceeding has commenced. No further notice of such action need be given to any Interested Party who is not a plaintiff or defendant in the Adversary Proceeding unless they intervene in the Adversary Proceeding. The caption of pleadings concerning Adversary Proceedings/Civil Actions arising out of an estate pending in Probate Court, shall include the name of the original estate and that of the first petitioner and first respondent in the related Adversary Proceeding. The Court may assign a derivative docket number to separately identify the Adversary Proceeding/Civil Action.
39.10 - Guardian ad litem:
The Court will appoint a Guardian ad litem upon the filing of a petition to appoint a conservator or guardian; provided, however, in proceedings to appoint a guardian, the Court may waive the appointment of a Guardian ad litem if good cause is shown.
The Court may appoint a Guardian ad litem in matters involving the sale, improvement, or mortgage of any real property in which a minor or other person under disability has an interest; in matters involving the sale or disposition of ward's personal property; in matters involving possible impropriety by a fiduciary; in matters concerning unauthorized encroachments or questionable management of a decedent's estate or award's assets under guardianships or conservatorships; in any matter the Court believes to be in the best interest of a minor, incompetent, absentee, unknown heir or Interested Party or to further the administration of justice.
The Guardian ad litem shall conduct an inquiry and file a report with the Court at least three (3) days prior to the hearing. The report shall contain the information required by statute and these Rules and such additional information the Court may require or the Guardian ad litem deems necessary. Reports are to be brief and to the point unless the complexities of the case require greater detail.
39.11 - Setting Hearings:
The secretary to the Judge will designate available hearing dates for all matters that will require more than twenty (20) minutes. the Clerk may set matters that are reasonably expected to require no more than twenty (20) minutes on the regular court docket.
All matters may be set by agreement of counsel, subject to confirmation by the Judge's secretary for matters anticipated to require more than twenty (20) minutes or by the Clerk if the matter is not expected to exceed twenty (20) minutes.
Notice of the date and time the hearing is set shall be given to all Interested Parties by the attorney who applied for the setting of a hearing. If the hearing is reasonably expected to take more than twenty (20) minutes, the Order shall state the time required for the hearing.
If all Interested Parties agree, a matter presently set for hearing may be continued. Notice of such continuance and the new hearing date shall be promptly provided to all Interested Parties by the attorney who requested the continuance. If all Interested Parties do not agree to the requested continuance, the Court will endeavor to conduct a telephone conference with all Interested Parties to discuss the requested continuance.
For good cause shown, the Court may hear any matter, including but not limited to the above matters, without a special setting.
39.12 - Petitions for Elective Share, Year's Support, Homestead, and Exempt Property:
Notice and Initiation of Petition. Notice shall be given to the personal representative of the estate, the attorney of record, and all interested parties (including creditors if the estate may be insolvent) that the surviving spouse intends to assert a claim for an Elective Share, Year's Support, Homestead, and/or Exempt Property. If the personal representative is the surviving spouse, an administrator may be appointed.
Prerequisites for Final Hearing In all claims for Elective Share, Year's Support, Homestead, and/or Exempt Property, each party shall be and is required to submit to the court and to the opposing party (and all interested parties) no later than 72 hours prior to the final hearing an estimate of the value of the net estate and a written proposal reflecting the amount and percentage for an Elective Share, the amount for Year's Support, the amount of Homestead, and the amount of Exempt Property which the surviving spouse should be awarded. This proposal shall contain stipulations by the parties, if any, as to the values attributable to assets to be considered in computing the Elective Share, Year's Support, Homestead or Exempt Property.
39.13 - Motions:
Motions will be heard by the court at 10:00 a.m. on Fridays, excluding holidays, and such other days as designated by the Court. Motions must be in writing and shall conform to the requirements of Local Rule 26. Parties represented by counsel shall provide written responses as required by Local Rule 26, otherwise they may not be permitted to oppose the motion. Nevertheless, Local Rule 26.04(f), which provides that motions shall automatically be granted if a written response is not timely filed, shall not apply in matters involving conservatorships, guardianships, fee requests, encroachments upon assets of an estate and other matters for which discretionary review by the Court is appropriate. With the exception of fee requests which are controlled by Rule 39.14(b), in all matters which require the discretionary approval of the Court, the movant should be prepared to present the motion with the anticipation the Court will have questions concerning the matter(s) at issue. Unless permission is obtained from the Court, no witness shall testify during the Friday Motion Docket.
39.14 - Fees of Fiduciaries and Attorneys:
Court Approval of Fees:
Decedent's Estates. In a decedent's estate, and with the exception of instances wherein all residuary beneficiaries of a solvent decedent's estate are competent adults and expressly consent in writing to the specific fee stated in the consent (see Local Rule 39.14(e)) and applications for fees immediately following a hearing in which the Court expressly instructed the applicant(s) to file an application for fees without the necessity of a motion and further hearing (see Local Rule 39.14(c)), any request for a fee shall be presented by Motion, supported by affidavits and if applicable billing statements and receipts, with appropriate service of all such documents upon Interested Parties.
Conservatorships and Guardianships. In conservatorships and guardianships only, any person or party, whether the conservator, guardian, attorney, petitioner, guardian ad litem or whomever, requesting that fees or expenses be charged against or paid by the respondent, ward or their estate, shall obtain approval of the Court prior to payment or receipt of such fee. Any person who pays any such fee out of the funds of a minor, incompetent, respondent or ward in a conservatorship or guardianship without express Court approval may be personally liable for the funds advanced and reasonable and necessary costs, fees and expenses resulting from such unauthorized disbursement.
When Motion Is Required. In those matters for which a motion is required, motions for fees, expenses and/or costs to be charged against a ward's or decedent's estate or against an adverse party shall be filed, served and docketed according to Local Rule 26 and 39.13, provided however, such motions shall not be deemed granted merely because a written response is not filed. The Court has the responsibility to determine whether such fees are reasonable and necessary whether or not a response is filed. If a written response is timely filed, a hearing on the motion shall be conducted. If no response is filed, neither the person applying for a fee nor their attorney need appear in Court to present the motion. The Court will review the motion and affidavit(s) supporting the fee request and act upon the fee request without a hearing. After reviewing the motion and affidavit(s), if the Court desires a hearing or additional information, the Court shall notify the applicant of the necessity of a hearing or additional information. Notice of the hearing shall expressly provide in bold:
THIS MOTION IS EXPECTED TO BE HEARD AT 10:00 A.M. ON FRIDAY _________, 20__ IN COURTROOM 408; HOWEVER, IF A WRITTEN RESPONSE IS NOT FILED BY THE END OF BUSINESS ON THE MONDAY PRECEDING THE HEARING DATE, THE COURT WILL REVIEW THE FEE REQUEST WITHOUT THE NECESSITY OF A HEARING.
When Motion is Not Required-"Fee Application". On certain occasions (with the prior direction from the Court), fees and expenses may be applied for without the necessity of filing a motion and docketing the matter for a hearing; nevertheless, in all such situations copies of the fee request and all documents attached thereto shall be served upon all Interested Parties even though no hearing is to be scheduled. Specifically, at the conclusion of hearings in which the Court approves a petition to create a conservatorship, guardianship and in certain other instances expressly directed by the Court, the Court may direct the person and parties who wish to be reimbursed their expenses and paid their reasonable and necessary fees incurred to date, to file a "Fee Application" in lieu of a motion. The Fee Application shall be served upon Interested Parties, along with the supporting documents, with the notice that the Court shall review and act upon the Fee Application without the necessity of a hearing. Unless one is expressly directed by the Court to file a Fee Application in lieu of a motion, all fee and expense requests should be presented by motion pursuant to Local Rule 26 with appropriate notice of a proposed hearing date.
Form of Motion and Fee Application. Fee requests shall be set forth in a manner similar to the applicable form(s) recommended by the Court, which may be obtained from the Clerk. The Motion or Fee Application shall state the fee requested, hours worked, hourly rate charged, and total of expenses requested, if any, along with such other facts as may be necessary to support the fees and/or expenses requested. The Motion or Fee Application shall be supported by appropriate affidavits, receipts, if applicable, and billing statement. All billing statements or affidavits shall itemize a brief description of the services rendered, the time expended and date of service, respectively. The person requesting a fee has the burden of proof to establish the reasonableness and necessity of the fee and why such fee and related expenses should be charged against a decedent's estate or a ward of a conservatorship or guardianship.
Written consent To Fees and Expenses - (Decedent's Estates Only). Court approval shall not be required if all residuary beneficiaries of a solvent decedent's estate are competent adults and consent to the specific fee stated in the consent. However, if Court approval is requested, a motion need not be filed or docketed for hearing provided that all residuary beneficiaries of a solvent decedent's estate are competent adults or entities and expressly consent in writing to the specefic fee stated in the consent; nevertheless, a Fee Application should be presented in the fashion stated in the preceding subsections. The written consents must be supported by an appropriate addidavit that expressly states: All residuary beneficiaries are competent adults or entities and have expressly consented to the specific fee requested, the estate is solvent, and the approval of fees being and to be requested shall not result in an insolvent estate or the inability to pay any valid claims of creditors. The foregoing procedure shall not be available if the estate is insolvent (or is reasonably likely to become insolvent) or if any residuary beneficiary is a minor or incompetent.
Fee Requests in Conservatorships and Guardianships.
Initial Request for Fees: Any person or party desiring to have their fees or expenses paid by the respondent/ward shall inform the Court of such request at the hearing wherein the Court either creates or dismisses a conservatorship or guardianship. The Court shall afford sufficient time to present affidavits and billing statements and may direct that such fee requests be presented by Motion pursuant to Local rule 39.14(b) or Fee Application pursuant to Local Rule 39.14(c).
Interim Request for Fees: When a conservatorship or guardianship is in existence and an interim request for fees is made, such requests shall be presented to the Court by Motion with service on Interested Parties pursuant to Local Rule 26. Unless good cause is shown to justify otherwise, interim fee requests shall be presented annually following approval of the annual accounting or, if accountings are waived, on the anniversary date of the creation [of] the conservatorship or guardianship estate.
Final Fee Requests: If a conservatorship or guardianship estate is to be closed, whether the minor has attained majority, the ward is deceased or his/her competency has been restored, all persons or parties desiring to have their fees of expenses paid by the respondent/ward or charged against an adverse party shall file a Motion pursuant to Local Rule 39.14(b) prior to the closing of the estate. Fees and expenses are to be determined and set forth in an order prior to or concurrent with the order closing the estate. Fee Applications and Motions to Set Fees filed after the closing of a conservatorship or guardianship may be barred unless good cause is shown.
Fee Requests in Decedent's Estates.
Interim Fee Requests: Interim requests for fees shall be presented to the Court by Motion with service on Interested Parties pursuant to Local Rule 26. Unless good cause is shown to justify otherwise, requests by the personal representative(s) or their legal counsel for fees or expenses in decedent's estates shall be presented annually following approval of the most recent annual accounting, or if accountings are waived, at such time as an annual accounting would have been made if accountings had not been waived.
Final Fee Requests. All persons or parties desiring to have their fees or expenses paid by or charged against the estate shall file a Motion pursuant to Local Rule 39.14(b) prior to the closing of the estate. All claims for fees and expenses are to be determined and set forth in an order prior to or concurrent with the order closing the estate. Motions to Set Fees filed after the closing of a decedent's estate may be barred unless good cause is shown.
Notice to Interested Parties. All Interested Parties shall receive a copy of any Fee Application and attachments thereto, and in the case of a Motion, shall also receive Notice of the date and time of the proposed hearing and a copy of the motion and attachments.
39.15 - Accountings and Closing of Estates:
Fiduciaries shall file an initial inventory and thereafter make annual accountings with the Probate Court Clerk until the estate is fully administered and closed. For good cause shown, the Court may extend or shorten the time for filing interim or final accountings. Accountings may be waived by the Court for good cause shown. Furthermore, in decedent's estates accountings may be waived if the decedent's will waives the requirement for the personal representative to make court accountings of the estate, or if all residuary beneficiaries have in writing excused the personal representative from filing all court accountings. The filing of an inventory may be waived in a like manner.
Copies of all accountings, interim or final, are to be furnished to all Interested Parties by the personal representative or their attorney of record.
Detailed accountings of solvent estates may be waived and the estate closed on receipt and waiver provided all residuary distributees are sui juris and acknowledge in writing that the estate has been properly distributed to them, that they file the statement in lieu of a more detailed accounting, and provided further that the personal representative, after the period for creditors to file claims against the estate has expired, files the required petition or statement with the Probate Court Clerk.
39.16 - Orders and Decrees
In addition to other provisions of Local Rule 33 which apply to Probate Court:
Orders which waive bond, inventory or accountings shall expressly set forth the grounds for such waiver.
If the basis of a ruling is set forth in an order, such shall be correctly stated and without recitation to matters which did not occur or findings which were not made by the Court.
All Orders shall state the date the matter was heard (or docketed for hearing) and be presented to the Court within seven (7) days thereafter unless additional time is expressly granted by the Court.
39.17 - Instructing Clerk to Invest Funds:
The Probate Court Clerk shall invest funds in interest bearing accounts only when there is a specific Order directing it to do so. Such orders should suggest the period of time the funds should be invested. All such orders must contain the full legal name, address and social security number of the person(s) whose funds are being invested. In guardianships, the date of birth and the date the minor shall become eighteen (18) years of age shall be stated in the order.