Tennessee Estate Law Blog

Every person’s situation is different when it comes to estate planning. Although it seems like the stereotypical estate planning involves leaving all of your assets to your spouse and your children, we recognize that not every person squeezes into the same proverbial box. There are a number of planning options for any person no matter the circumstances. We would like to use this post to describe some options for those who may not have the exact situation as described above.

When thinking about estate planning, there are two main questions that a person needs to think about: 1) Who is getting my stuff and 2) Who is going to make sure that those named get my stuff? While these are some of the important questions in estate planning, there may be some who do not have friends or family to fill those roles. There are a number of people in the same set of circumstances. You are not the only one. I can assure you of that.

In thinking about where you want your stuff to go, there may be a number of reasons why someone may not want to or may not be able to leave your assets to friends or family members. Some may be hesitant of leaving a large inheritance to those who are already successful because they may feel that the inheritance would be best served elsewhere. Others may not be close to their family. Some may be in a family rift. Others may feel that those receiving the assets would squander them.

If you’ve seen many movies, watched much television, or read many books, you may have witnessed a scene where a character stumbles upon a dusty, crumpled handwritten Will tucked away in a pile of papers just after someone has passed away. The character dusts the Will off and reads the decedent’s handwriting only to learn that he or she has just inherited a fortune. Many people may believe that this scene just like the handwritten Will is only a Hollywood fabrication. However, surprisingly enough, handwritten wills are not just “made-for-tv.” These types of wills can be valid under the law.

Holographic wills, the legal name for handwritten wills, are indeed valid in Tennessee. While a holographic will may be valid, it must meet certain requirements for a probate court to accept it as valid. The first requirement of a valid holographic will is that all the material portions of the will must be in the handwriting of the testator, or the person making the will. The second requirement is that the will must include the testator’s signature. The third and final requirement for a valid holographic will in Tennessee is that the testator’s handwriting must be proved by two witnesses.

Well that sounds easy enough, doesn’t it? Not exactly. While holographic wills can be a quick and easy way to convey your assets upon death, there can be a number of issues that can affect the validity of a holographic will. Not every holographic will may meet the legal requirements under Tennessee law. The person making a handwritten will may forget to sign his or her name incorrectly thinking that merely identifying himself or herself should suffice. A person may incorrectly think that he or she could type up a will and sign it. A person may not have at least two people to identify his or her handwriting. If a judge does not find that the holographic will meets all of the requirements under the law, he or she may find that the handwritten will is not valid. Without a valid will, the state would then divide the assets according to the statutes disregarding any desires of the testator.

A husband and wife are returning from their honeymoon. The two reflect on the Big Day and their future together. The husband gently takes his wife’s hand, looks longingly into her eyes and says, “Honey, with all this romanticism in the air, I’ve got an idea: when we get home, why don’t we go down to our attorney’s office and start putting together an estate plan—maybe get a will or power of attorney?”

Let’s face it: this situation has probably never occurred. Chances are it lives purely within the realm of fiction. The minds of newlyweds are occupied by so many things and the “doom and gloom” of death or disability that is considered in estate planning probably does not live at the forefront of such minds.

However, the truth of the matter is that when two people’s lives merge in marriage, such a merger requires planning and said planning should include that of your estate. Many individuals envision a long, drawn-out process when it comes to starting an estate plan and therefore continue to put off the process. However, often the process of starting an estate plan will only become more complicated as time passes: children and grandchildren are born, assets are acquired, family members become ill, and accidents occur.

There are certain legal documents that every family should have. Each of these documents provides you with the ability to make important decisions regarding the most critical aspects of your life. Executing these documents ensures that these decisions are left up to you rather than having to worry about loved ones making the difficult decisions. The following legal documents each have a different function but are equally important. If you have any questions about any of these documents or other issues, be sure to contact one of our Tennessee Wills lawyers.

Will

A will is a critical document that every family should have.  In its simplest form, a will provides for the specific distribution of one’s estate after he or she has passed away. Wills can, though, provide so much more than merely a distribution of assets. A will provides both you and your family with a sense of security if anything were to ever happen to you.

While wills can range from very simple to very complex, a will can be specially tailored to any family’s specific needs. Whether a will contains provisions for who may care for minor children upon the death of a parent or similarly sets up a trust for the children, wills ensure that families take care of their specialized needs. A will is a vital document that no family should be without.

Power of Attorney

The Power of Attorney is a document that gives another individual, or an agent, the ability to act in a time of need on behalf of the person granting the authority, known as the principal. Specifically, there are two main types of Powers of Attorney: 1) Durable Power of Attorney and 2) Springing Power of Attorney.

The powers typically listed include the purchase and sale of real estate, banking matters, any investment transactions, and also operation of the principal’s business. Other powers may include the power to handle tax matters, to make gifts from the principal’s property, to enter into trusts, and to initiate or defend legal claims.

The difference between the types of a Power of Attorney involves when the transfer of authority takes effect. A Durable Power of Attorney allows an individual to designate an agent to act on his or her behalf to manage the affairs or assets of the principal. The principal has the ability to grant a broad set of powers or a small set of powers to the agent. A Durable Power of Attorney grants authority to the agent immediately upon executing the document.

A Springing Power of Attorney grants authority only when certain conditions are met. These conditions may include the incapacity or impairment of the principal. The authority under the Springing Power of Attorney will only last as long as the principal is impaired or incapacitated.

A Power of Attorney can provide you with the ease of mind that your affairs can be handled appropriately should the need ever arise. In order to ensure compliance with Tennessee law, it is important that a qualified Tennessee attorney drafts these documents.

Living Will

Although sometimes confused with a last will and testament, a living will is a completely different document, but is equally as important. A living will is a document known as an advanced directive that specifically states the principal’s desires for care that he or she would want or not want in the event of becoming incapacitated.

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Take a deep breath and remain calm.   If it is handled correctly the probate procedure in Tennessee is usually easy and inexpensive.    Our Tennessee Probate Lawyers have helped thousands of people navigate through probate process.  We have found that once our clients  understands how probate works and what to expect then much of stress and anxiety disappears.  To give you an overview of Tennessee Probate we have set forth a little summary below.

While you may have heard of probate, you may not know how the process works.  Probate is a term that is used in several different ways. It can refer to the act of presenting a will to the court, which is known as “probating” the will. This is a step to let everyone know that you believe the will is genuine and you are going through with the decedent’s wishes as to the distribution of their property.   However, probate more commonly refers to the process in which an estate is administered with the oversight of the court after someone passes away. Probate courts (chancery courts in Tennessee) have authority in our state to oversee all probate matters.

It is important to note that not all property is required to go through the probate process.  Normally, only assets the decadent possessed in their name alone must go through probate. All other property can go to the new owners without going through the court approved probate process. Property that go through probate are known as a “probate estate.”

Here are some common assets that may be not part of the formal probate process:

• Payable-on-death bank accounts
• Real Estate or other property held in joint tenancy (this is a fancy word meaning more than one person owned it together)
• Any property held in tenancy by the entirety
• Proceeds from Life Insurance
• Assets registered in transfer-on-death form
• Retirement accounts

Probate provides an supervised and orderly way to give  your assets making up the probate estate after someone has passed away. The probate procedure typically involves several steps that we have set forth below:

1. First what, if any, assets subject to probate.
2. The will is presented to the court to determine to make sure it is valid.
3. A personal representative of the estate  is appointed “opening” the estate. This person is usually called the executor or executrix.  If there was no will they call them the administrator.
4. Any creditors and beneficiaries are notified that the estate has been opened.
5. The personal representative collects and accounts for all the property that will pass through the estate.
6. Debts of the estate are paid off following specified procedural requirements. If a debt is believed not to be legitimate an objection is filed.
7. The assets are distributed to the specified beneficiaries.
8. The estate is then closed. Done!

If the person dies without a will court follows the same procedures only without the verification of a will.   This is known as dying intestate.  State statutes dictate the beneficiaries.

While this summary provides a brief outline of the probate process, sometimes there are complications with the process.  As such, it can be very beneficial to have the help of an experienced probate attorney to help with any complex issues. Usually, the probate attorney is paid from the estate.  Continue Reading

There can be enormous stress and emotional trauma brought on by the death of a loved one. Some of the smallest tasks can be overwhelming with any added stress. Knowing where to turn next can be of great help in a time of trouble. We hope that you will use this list as a reference to guide you through some essential steps that should be taken following a death.

1. Social Security Administration

Contact the Social Security office to notify them of the death. You may be eligible for Social Security death benefits. Call the Social Security Administration at 1-800-772-1213 for further information.

2. Veterans’ Benefits

Contact the Office of Veterans Affairs at 1-800- 827-1000. If your loved one was a veteran, you may be eligible for assistance with the funeral, burial plot, or other benefits including pension payments and financial aid for education costs.

3. Safe Deposit Boxes

If the deceased had a safe deposit box, contact the bank to transfer possession to you. Safe deposit boxes may include a will or other important items needed for probate or the distribution of assets. If you are unsure whether the deceased had a safe deposit box, check with the bank where the deceased held accounts.

4. Wills, Trusts, or other Estate Planning Documents

Find any estate planning documents including any wills or trusts. These may be kept in a safe deposit box, a safe within the home, or a file containing other important documents.

5. Gather Important Documents

Find any important documents pertaining to your loved one’s affairs that may be needed. Gather any deeds, business agreements, bank account information, tax returns, earning statements, birth and marriage certificates, Social Security card, vehicle registration, loan payments, bills, or other important papers.

6. Take an Inventory of Assets

Determine the existence of any of the assets held by the decedent. Maintain an inventory of the assets. Such assets may include:

• Bank accounts
• Life insurance policies
• Stocks and bonds
• Retirement accounts: 401K, IRA accounts, etc.
• Real estate
• Any personal belongings
• Business interests

7. Take an Inventory of Liabilities

Determine the existence of the decedent’s liabilities, and maintain an inventory. Liabilities may include:

• Mortgages
• Household bills
• Medical or funeral expenses
• Other secured obligations

8. Maintain Proof of Payment for Expenses

Hold onto any receipts, bills, invoices, and canceled checks for payment of any expenses. The individual appointed as the personal representative must supply evidence of payment to the probate court.

9. Hold onto Documents and Mail of Decedent

Keep any documents including life insurance policies and certificates. Hold onto these documents even if the policyholder stopped paying because the policy may still apply. Also, keep any mail or letters as they may be needed later to prove payment or ownership of assets.

10. Secure Assets

Secure any valuable personal property of the decedent. If any property is distributed before taking inventory, it can be very hard to keep track of the property. Also, keep paying insurance for any property including a house or car in order to ensure that the assets are protected during the probate process.

11. Save Obituary Notices

Save any obituary notices because insurance companies may require a dated publication to process claims.

12. Order Death Certificates

Order at least ten death certificates. Family members, legal representatives, or others with a documented reason can obtain certified death certificates at the Tennessee Office of Vital Records. Insurance companies, banks, Social Security Administration, and others all require a certified death certificate.

13. Taxes

You will need to file the decedent’s tax return for the year of the death. There are a number of other tax issues that are implicated with a death. Be sure to consult with an estates attorney.

14. Minor Children

If the decedent has minor children and the other parent has died, a guardian may be nominated in the will. A guardianship will be required for children under 18 who will be receiving money or valuable property according to the will.

15. Talk with your Tennessee Probate Attorney

Your Tennessee probate attorney can let you know if any probate proceedings will be necessary. Your attorney can also answer any questions that you may have.

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