34-1-111 - Accounting with court Failure to account. - Tennessee Statutes

34-1-111. Accounting with court Failure to account.

(a)  Except as provided in subsection (h), within sixty (60) days after each anniversary of the fiduciary's date of appointment or any other end of an accounting period selected by the fiduciary, the fiduciary shall file a sworn accounting with the court. To select an accounting period end other than the end of the month during which the fiduciary was appointed, the fiduciary shall file a statement with the clerk advising of the accounting period selected. The accounting period shall not exceed twelve (12) months.

(b)  For good cause, the court may extend the time for filing the accounting.

(c)  (1)  The accounting shall itemize the receipts and the expenditures made during the period covered by the accounting. The same or similar items may be reported collectively. The accounting shall also detail the property held by the fiduciary at the end of the accounting period. To support the financial information reported, the fiduciary shall submit with the accounting:

          (A)  Each bank statement, brokerage statement or other document reporting any financial information;

          (B)  In connection with any accounting, to support the financial information reported, the fiduciary shall submit with the accounting the original of each cancelled check written on the account unless:

                (i)  The fiduciary is a bank to which § 45-2-1002(c) would apply or a savings and loan association or credit union to which § 45-2-1002(c) would apply if the savings and loan association or credit union were a bank, in which case the fiduciary shall comply with § 45-2-1002(c); or

                (ii)  The fiduciary account is maintained in a “financial institution” as defined in § 34-1-101(9), that does not return the cancelled checks but provides a printed statement showing the date the check cleared, the payee and the amount, in which case the fiduciary shall submit a printed statement from the financial institution.

          (C)  A copy of any United States and Tennessee income tax returns filed on behalf of the minor or disabled person. If no United States or Tennessee income tax return is due, the fiduciary shall include a statement in the accounting that no such return is due and shall set forth the gross income of the minor or disabled person, and include information from the Internal Revenue Code or Tennessee Code Annotated evidencing the availability of the claimed exemption; and

          (D)  If the bond is secured by a corporate surety, a statement from the corporate surety that the bond is in force for the next annual period. The surety's liability under the bond shall not be cumulative and shall not exceed the sum of the bond in force at the time of default.

     (2)  The accounting shall contain a statement concerning the physical or mental condition of the disabled person, which statement shall demonstrate to the court the need, or lack of need, for the continuation of the fiduciary's services.

(d)  When the accounting has been confirmed, the clerk of the court shall return the original documentation required in subsection (c) to the fiduciary.

(e)  Unless the court has approved an extension of time for filing the accounting, if the fiduciary fails to file the accounting within the required time, the clerk shall promptly notify the fiduciary and the fiduciary's attorney of record. If after notice the accounting has not been filed thirty (30) days thereafter, the clerk shall cite the fiduciary to appear on a date certain and render the accounting. Upon failure to appear as cited, the fiduciary shall be summoned to appear before the court and show cause why the fiduciary should not be held in contempt.

(f)  Unless the court has authorized an extension of time to file the accounting, if a fiduciary who has been summoned does not respond within thirty (30) days of the date the summons was received by the fiduciary, the court may enter an order revoking the fiduciary's authority and appointing a substitute fiduciary.

(g)  On the failure of the fiduciary to account, the fiduciary may be charged with the value of the assets at the beginning of the year. The amount shall accrue interest at the prejudgment rate and compound annually until a proper accounting is made and approved. On the issuance of a show cause order and the failure of the fiduciary to appear and explain, the court shall allow the entry of judgment against the fiduciary and the fiduciary's surety for the amount unaccounted for, plus interest. The fiduciary's surety shall be given adequate notice and may appear and make defense.

(h)  Accountings may be excused in the discretion of the court, if the court makes a finding based on the evidence presented at a hearing that waiver of the accountings would be appropriate, would be in the best interest of the minor or disabled person and that one (1) of the following exists:

     (1)  The fiduciary holds no property of the minor or disabled person and receives only fixed periodic payments, including, but not limited to, social security, veterans benefits or workers' compensation benefits, and the order appointing the fiduciary authorizes the fiduciary to apply the entire periodic payment to the needs of the minor or disabled person. The fiduciary holds no property of the minor or disabled person if the property of the minor or disabled person is:

          (A)  Deposited with the clerk and master or clerk of the court;

          (B)  Placed with a financial institution and the fiduciary and the financial institution enter into a written agreement, filed with the court, in which the financial institution agrees it will not permit the fiduciary to withdraw the principal without court approval; or

     (2)  The cost of the accounting would exceed twenty-five percent (25%) of the income produced by the property held by the fiduciary.

(i)  This section does not apply to accountings filed pursuant to § 34-5-111, relating to veterans' guardians.

[Acts 1992, ch. 794, § 12; 1994, ch. 855, §§ 4, 5, 16; 1998, ch. 762, § 3; T.C.A. § 34-11-111.]