A will, or last will and testament, is a legal document that outlines your final wishes as they pertain to assets and dependents upon your death. You can have your assets distributed to another person, group, or charity, and those wishes are included with as much detail as you desire in your final will. Also, you should also include instructions for the transfer of responsibility of other persons or interests for which you are accountable. Plus, it always pays to plan for the future.
What Happens When a Person Dies Without a Will in Tennessee?
In the state of Tennessee, there is a very specific order of how assets are distributed when a person dies without a will. Here is the order of inheritance in Tennessee for 2020:
- If married with no children, the spouse inherits everything.
- If married with children, the spouse gets at least 1/3 of the assets with the children splitting the rest. If there is only one child, the spouse and child would each get half of the assets.
- If unmarried with children, the children split the assets evenly.
- If unmarried with no children or spouse, the inheritance order goes as follows:
- Parents (all assets)
- Siblings (if no living parents split assets evenly)
- Grandparents (all assets, if no living parents or siblings)
Assuming that you might want something different, it makes sense to put together at least a simple legal will. For example, an unmarried person without children might want to leave assets to a niece, nephew, or friend.
Learn more about the process of distributing assets of a deceased person without a will from Knoxville attorney Jed McKeehan:
When you die without a willIt's called dying intestate- meaning the person did not leave a will. It happens all the time. There are procedures available to transfer property and assign someone to be the administrator which is the person in charge- not always the best thing and this video tells you why.
What Makes a Will Legal and Valid
Novels and movies make writing a will look as simple as scribbling a few things on a scrap of paper as you draw a final breath, but in spite of this somewhat-romantic notion, making a will legally binding requires a few more steps.
In Tennessee, there are several forms that wills take that are recognized: basic legal will with witnesses, holographic (or handwritten) wills, and nuncupative (oral) wills. Let’s review each of these.
By far, meeting the requirements for a typical legal last will and testament is the best way to ensure your wishes are carried out.
The basic requirements in Tennessee are as follows: The testator (the person writing the will) must be over 18-years-old and be of sound mind. There must be a signature from the testator, as well as two witnesses who are not beneficiaries of the will. All must be in the other’s presence. The will must be in writing, and it’s legal for the testator to leave his or her assets to anyone.
There are two other recognized types of wills in Tennessee, though they are more easily challenged than the above: Holographic (handwritten) wills and nuncupative (oral) wills.
A holographic will is similar to the scrap of paper mentioned above. It must be written entirely word-for-word by the testator and signed. All parts of this will must be in the testator’s handwriting, and the handwriting must be verified as that of the testator by two witnesses, who are not benefiting from the will.
A nuncupative will is made vocally in front of a witness but is only valid under specific circumstances. It is only valid under Tennessee law if the testator is in immediate danger of death or if the person dies as a result of unexpected peril.
McKeehan shares more about the legality of a holographic will in Tennessee in this video:
What Is A Holographic WillThis video explains what a holographic will is.
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Do I Need a Will or a Living Trust
The definitions of a legal will in the state of Tennessee have been provided above, so that leaves the question of what is a living trust? Whereas a last will and testament are only executable upon the testator’s death, a living trust places assets into it immediately upon creation.
When this happens, legal ownership of those assets transfers from the person to the living trust. The most relevant trust in estate planning is the irrevocable trust. Placing assets in this type of trust can give you a tax advantage. Find more information about trusts and estate planning from attorney Jed McKeehan.
One advantage of establishing a living trust for your assets before your death is to avoid your estate going into probate. What does probate mean? It is a term that describes the legal process of validating a will after someone dies.
A probate court judge will validate the legality of a will and assign an executor of the will. The executor will manage the payment of any owed debts and then distribute the remaining assets, as specified by the last will and testament of the deceased.
Remember if you establish a living trust for your tangible assets, you may still need to draw up a will to appoint guardianship of your children or designate other responsibilities you might have.
When Do You Need an Attorney For Wills?
Although there are plenty of websites that offer a guide to creating a will yourself without the help of an attorney, that may not be a great idea, unless you have the most basic of estates and bequeaths.
If your estate has any complications, like multiple accounts, properties or other assets, and if you are making any special designations, it is a good idea to consult with an attorney.
It is possible without legal guidance that a court could find your will invalid partially or wholly, which would be unneeded stress on those left behind. Hiring an attorney in the state where the will is being filed will validate the format of your last will and testament in accordance with the state’s unique set of laws.
Contesting a Will
It is expensive to contest a legal will in court, but sometimes people will try. Luckily, there are rules that govern whether a will can be challenged or not. Sometimes those rules can protect your final requests.
Depending on the state in which your will is executed, specific criteria will need to be met in order to challenge a legal will. In the state of Tennessee, there are some specific rules around contesting a last will and testament. Among these you’ll find:
- There is a statute of limitations on filing a dispute of one year from the date it enters probate.
- Only those who can show they would be entitled to a share of the estate, if not for the will, can legally contest it.
- The grounds for contesting the will must fall within the narrow circumstances as allowed by Tennessee law:
- Improper execution of the will
- Lack of capacity
- Undue influence
There are ways to avoid most challenges, even from the unhappiest family members. Doing as much to limit later challenges when you compose your will and designate any beneficiaries is key. Following these steps when creating and executing your will should do what is needed to stop any challenge:
- As we’ve discussed, hiring an attorney to help legally compose and execute your will is your first important step. Don’t forget to have two people witnesses and sign the document to make it valid in Tennessee. The lawyer can also help you head-off any competency claims by performing a competency test. Also, a video of the signing of the will can be recorded and stored with the document.
- There is an option to include a no-contest clause in the will. This is perhaps the most effective to prevent challenges. It basically states that if a relative challenges the will they will get nothing.
- If you fear someone will feel shortchanged by your decisions, you could get out ahead of it by meeting with this person to explain, as you are drafting the will. If that is too uncomfortable, including a letter of explanation to this person with the will could be helpful.
If you follow the general suggestions when creating your last will and testament, most of these issues can be avoided.
In conclusion, no matter the size of your estate, it makes sense to plan ahead by composing a last will and testament to erase the burden of your family upon your death that they will feel if required to distribute your estate.
Contacting an attorney based in Tennessee can make the process a lot simpler and will leave your legacy planning more secure.
At McKeehan Law Group, we can help you with all of these estate planning decisions. You can contact us through our website or follow us on Facebook, Twitter, and YouTube.