Confessions of a Probate Non-Expert

By Judge Dale Tipps, Murfreesboro

One of the things I enjoyed about workers’ compensation when I was in private practice was that it was always familiar. True, there were often unique facts or novel legal issues, but they were safely ensconced in a knowable statutory framework.

I usually enjoyed other areas of practice, too. You know, the products/contract claims that made me unexpectedly conversant about polymer concrete or natural gas odorants. Or tort claims where I learned more about diesel engine maintenance or firearms ammunition than I ever thought likely.

There was one area, however, that I did not really enjoy. It began when I was a new associate, and the senior partner asked me to probate the estate of one of his relatives. After considerable trial and error, and thanks to a remarkably helpful probate clerk, I got it closed. Since this was more probate work than anyone else in the firm had ever done, I became my firm’s probate “expert.” Of course, I wasn’t actually expert at all, and since probate issues and files were so rare, I never felt comfortable with the process.

What prompted this charming, albeit random, trip down memory lane? Well, I’ve recently encountered questions about a couple of intersections between probate and workers’ compensation. Specifically, those instances when a probate estate is necessary to try or settle a workers’ compensation claim.

The first is explicit in the statute. Tennessee Code Annotated section 50-6-209(b)(2) says that, in cases when the death of an employee with no dependents is primarily caused by work, “then the lump sum of $20,000.00 shall be paid to the estate of the deceased employee.”

The second circumstance is less common and perhaps less obvious. When an employee has a pending workers’ compensation claim but dies from unrelated causes, their estate may be entitled to any unpaid temporary disability benefits, as well as any permanent disability benefits that may have accrued since reaching maximum medical improvement. Maybe medical expense reimbursement, too.

In either of these scenarios, we are occasionally asked to approve settlements where the petitioner is a spouse or parent appearing as next of kin, surviving spouse, sole beneficiary, etc. This we cannot do, as the statute only provides for benefit payments to third parties in death claims involving dependents, as in section 50-6-210.

Counsel presenting these settlements will often say that the estate is small and not worth the effort and expense of probate. While the Court is sympathetic to these concerns, they don’t change the statutory limitations we must follow. Further, the General Assembly passed the Small Estates Probate Act last year, significantly amending the previous small estate law. TCA § 30-4-101 et seq., effective April 28, 2023. Some of the changes should make probate easier and quicker in many of these cases, as well as possibly allowing a party to focus the probate process solely on the workers’ compensation benefits.

Despite what my former partners wanted to believe, I’ve never been a probate expert. The good news is, you don’t need to be, either. But please remember that unless you’re dealing with a claim for death benefits under section -210, settlements involving deceased employees will need to be brought by a court-appointed personal representative.