Wills and Probate
A will is a document that declares who will receive your property when you die. Through your will you direct how assets are to be distributed. A will directs the disposition of all assets in your name alone. Not all assets, however, pass through a will. Life insurance, pension plans and the like usually pass directly to named beneficiaries. In the same way, joint property and trust bank accounts usually pass to the named survivor outside of the will.
Who will manage my property when I die?
You can decide who manages your property after you die by appointing a personal representative. A personal representative takes care that the debts and other expenses of the estate are paid and that the assets are distributed according to your desire.
What Happens if I Die Without a Will?
If you do not have a valid will at the time of death, your property may not be distributed in accordance with your wishes. In addition, if any of the persons entitled to part of the estate are minors, long difficult procedures and additional expense may result for them and their parents. The court will appoint an administrator, usually a close relative, who distributes the property of the deceased according to Tennessee law but not necessarily according to the wishes of the decedent. Your property will be distributed according to a formula created by Tennessee law. In most instances, your property will be distributed among your family members, however not in the way you may have wished. Under the Tennessee law :
- If the spouse is alive but no children, then the spouse takes all of the property;
- If the spouse is dead but there are children, then the children take all of the property
- If the spouse is alive and there are children, then the spouse and the children share equally in the estate but the spouse's share can not be less than one-third (1/3);
- If there is no spouse and no children but the parent(s) are alive, then the parent(s) take all of the property;
- If there is no spouse, no children and no parent(s) but there are surviving brother(s) and/or sister(s), then the brother(s) and/or sister(s) take all of the property equally.
- If there is no spouse, no children and no parent(s), and no brother(s) and/or sister(s) but surviving grand parents, then one half (1/2) of the property goes to the maternal side grandparents and other one-half (1/2) to the paternal grandparents.
What are the Requirements for a Valid Will in Tennessee?
A testator must be 18 years of age or over and of sound mind and memory. The will must be witnessed by at least two persons who are not beneficiaries under the will. A will must be executed in strict compliance with the law or it will not be valid. Homemade wills are extremely dangerous and are frequently the subject of lawsuits. Do NOT execute, alter, amend, or change a will, except under the direction of a lawyer.
How Long is a Will Good?
A will remains valid until it is revoked.
How Can I Make a Change to my Will?
One may either execute a new will, or make a change (called a codicil). You may want to modify your will following changes in your marital status, deaths among beneficiaries, a desire to eliminate gifts to certain beneficiaries, changes in property holdings, additions to your family or those of your heirs. Consult with your attorney as to whether a new will is necessary, or whether a codicil is appropriate. In order for the codicil to be legal, it must be executed under the same strict requirements that a will must be. Failure to observe statutory requirements for proper execution of a will can invalidate the will or codicil.
Is a Form Will Satisfactory?
A form will can be legal, but use of a form by non-lawyers is risky. Wills are not "one size fits all." A will should be drafted to address the specific needs to the individual, not to fit some form.
What is probate?
After a loved one has died, there are many things that must be done. Assets must be gathered, bills must be paid and assets must be distributed. This process of managing a person's affairs after death is known as estate administration. The legal authority to manage these affairs is granted by a court, usually in the county where the person lived. Banks and other institutions where the decedent had accounts will not speak to you simply because you are a family member. You must be appointed by court as the legal representative of the estate also known as a personal representative/executor.
Where the decedent had a will, the will is presented to the court in a Probate Proceeding. The representative appointed by the court is called an personal representative/executor and the court papers making him or her personal representative/executor are called "Letters Testamentary".
If the decedent did not have a will, the court case is called an administration proceeding and the representative is called an "Administrator". The court papers making that person the administrator are called "Letters of Administration". The proceedings are essentially the same and for simplification, we will simply refer to them as probate proceedings.
If no one steps forward to manage affairs, the county public administrator can step in and act as the executor. The public administrator, as all other fiduciaries, will charge a fee to the estate for this service.
Once appointed, the personal representative/executor assumes the job of gathering assets, paying debts and distributing assets. This process is almost always done with the help of a probate attorney. Before distributing the assets, however, the personal representative/executor will report to the beneficiaries on what the personal representative/executor has done and how he or she proposes to distribute the assets. The attorney for the personal representative/executor will prepare an accounting of the
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