Tennessee Estate Law Blog

May 20, 2014

Understanding Probate and Non-Probate Assets

When an individual passes away, his or her assets may or may not be required to go through the probate process in Tennessee’s probate court. The determination of whether probate is needed is often dependent on what types of assets were left by the decedent. Often many beneficiaries of an estate may be confused about what is rightfully owed to them. By determining whether certain assets are required to go through probate, you will have a better understanding of what you may be entitled to as a beneficiary of an estate or what is required to probate an estate. This understanding can help to prevent any potential disputes in the probate process.

As mentioned, only certain assets are required to go through the probate process. Assets that were owned solely in the name of the decedent or assets that did not have beneficiary designations will need to go through the probate court in Tennessee. So what exactly does that mean? Here are a few common types of assets that are NOT required to go through the probate court:

Any type of 401K, IRA plan or other retirement plan that lists a specific individual as beneficiary. The listed beneficiary will receive the assets within the account without having to go through the probate court. However, if the estate is listed as the beneficiary or if there is no living beneficiary listed, the asset will be a probate asset.

May 6, 2014

Digital Assets Within your Estate Plan

by Ryan Simmons

When thinking about what to leave to loved ones after you have passed away, you may first think of your bank account, car, or house. While many people choose to leave their tangible assets to specific individuals in a will after they have died, more and more people are choosing to leave behind their digital assets. Although many will not think of their digital assets when creating their estate plan, digital assets often can be very valuable. In addition, these non-tangible assets can also be harder to pass down to your loved ones due to their nature. Specifically, you cannot exactly hold or move your social media or email accounts like a painting or television. You often need to know certain information to access these assets. If you have a question about passing down your digital assets, contact the Nashville estate planning lawyers at The Higgins Firm.

Possessing digital assets is a growing trend that shows no signs of slowing down. Many people store their music, pictures, or other information online. Whether the assets contain actual monetary value or merely sentimental value, you as the owner have the ability to choose what should happen to those assets after you are gone. People may want to pass along their Facebook, Twitter, blog, or email accounts to loved ones. Other types of digital assets may include website domain names, online stored documents, online bank accounts, iTunes accounts, or anything similar. The choice to pass on any of these assets should be left up to you.

One of the best ways to pass on your virtual assets is through your will or estate plan. You can choose to specifically grant your heirs access to your digital assets through these legal documents. Designating a digital executor can allow this person to have access to these items. Although this will grant the individual legal authority for access, some user-service agreements and laws may restrict access. Unfortunately, some of these agreements and laws are behind the trend of passing on these digital assets.

April 29, 2014

Benefits of Probating an Estate in Tennessee

by Ryan Simmons

Probate has somewhat undeservingly developed a negative reputation from some over the years. Certain people who have gone through the probate process may negatively talk about the cost or time required to probate an estate. However, for the probate process to work properly, there are certain requirements that must be met in order for an estate to be probated. These requirements allow the court to properly oversee the probate process which benefits both the personal representative and the beneficiaries of the estate. If you have any questions regarding probating an estate in the middle Tennessee area, contact our Nashville probate lawyers.

There are a number of benefits of probating an estate. The main benefit in probating an estate is the court’s oversight of the transfer of any assets owned solely in the name of the decedent. Certain entities like banks or other financial institutions will not allow for the transfer of assets without an order from the probate court. When the probate court issues an order, this signifies that the court has given oversight to the last will and testament or the next of kin to transfer the estate’s assets. This oversight enables a bank or other institution to then transfer the assets without any fear of transferring to the wrong party. In other words, the court is able to verify who should receive what assets according to the will or laws of intestacy.

Probate ensures that the transfer of assets is done in an open and orderly manner. Without a court overseen process, assets could be transferred to the wrong person or they could be transferred in the incorrect amount. In addition, a person could claim to have distributed all of the assets without actually having some way to verify that fact. The probate court allocates authority to the personal representative (person nominated executor in the will or appointed administrator) to pay off any debts that the decedent may have had and to distribute any remaining assets within the estate. The court requires that the personal representative complete certain requirements to ensure that the proper steps have been taken.

April 22, 2014

How Long Does it Take to Probate an Estate in Tennessee?

by Ryan Simmons

One of the questions that I often get is, “How long does probate take in Tennessee?” Although many times it is very simple, the probate process can become very complicated depending on what type of assets or debts are within the estate. As a result, an estate can remain open for a longer period of time depending on certain factors.

Fully probating an estate (not a small estate) takes a minimum of four months following the time of first publication. After an estate has been opened with the court, publication is made within a local newspaper notifying any potential creditors that the estate has been opened. During this four month period, creditors are then able to file a claim against the estate for the repayment of any debts that the decedent may have incurred. After this required four month period, an estate can be closed assuming that all debts have been paid and all of the necessary requirements have been met.

It is important to keep in mind that four months is the bare minimum amount of time that an estate will remain open. There is no guarantee that the estate will be closed at the end of the four month period. Often estates will remain open for a month or two longer depending on whether certain steps have been completed or not.

April 15, 2014

Is Your Out of State Will Valid in Tennessee?

by Ryan Simmons

Recently, I have received several inquiries regarding the validity of an out of state will or a will that was drafted outside of Tennessee. Many people want to know whether their will that was drafted in another state like Colorado or Florida has the same effect as a will drafted in Tennessee. It’s obviously a great question because there are a number of technicalities that can easily nullify the validity of a will. The ramifications of an invalid will can spell trouble for all of those involved. The good news is that most states have the same or very similar requirements for what are known as attested wills. Although there are different types of wills, attested wills are the most common and are typically typed up by an attorney or legal service and signed by the testator (the person whose will it is). If you have questions about your will, be sure to contact the Nashville wills attorneys at The Higgins Firm.

In Tennessee, there are general requirements for any type of will to be valid. These general requirements go to the qualifications of the testator. First, the testator must actually intend that the particular instrument or document operates as his or her will at the time of its signing. Also, the testator must also be over the age of 18, the age of majority in Tennessee. In addition, the testator must be “of sound mind,” which means the person must have the mental capacity to understand that he or she is executing a will and its effect.

Similar to the general requirements for a will, there are certain requirements specifically for the execution of a valid attested will. These requirements go to the execution or signing of the document. Attested wills must be signed by the testator or by another person at the testator’s direction and in his or her presence. Also, there must be two witnesses. The testator must sign the will (or acknowledge his or her previous signature or the will) in each of the witnesses’ presence. Further, the witnesses must sign in the testator’s presence. The testator must also inform the witnesses that he or she is signing a will rather than another legal document. Finally, the witnesses must sign in the presence of each other.

April 8, 2014

Attorney Jim Higgins Discusses Dying without a Will

by Ryan Simmons

Recently, attorney Jim Higgins appeared on Nashville’s WSMV to talk about what happens when someone passes away without a will. Although there are a number of benefits to having a will in place, it is not the end of the world if you do not have one. The important difference when someone dies without a will in place is that the state determines where the decedent’s assets will go rather than the specific person before his or her passing. Tennessee state law has set forth where the assets should be distributed based solely upon family relationships rather than any specific need that a certain family may have. Obviously, people have the ability to determine where they want their assets to go, and a will serves that very purpose. However, in leaving such an important decision up to state statutes, there is not the flexibility to determine where you want any of your stuff to go after you’re gone. If you have any questions about any probate matters in Tennessee, be sure to contact the Nashville probate attorneys at The Higgins Firm.

April 1, 2014

Revoking Your Will

by Ryan Simmons

Working as a Tennessee estate and probate attorney, I get questions from people all of the time regarding some of the basic issues about my field. Many of the people that I talk with are often worried about specific legal technicalities in estate planning. There are a number of seemingly small actions that can have a large legal impact on a person’s legal documents and estate. I am happy to provide people with a basic understanding of the law and what to do to comply with it.

One of the questions I recently received was regarding the revocation of a will. This individual asked, “I have an old will. How do I revoke the will?” Fortunately, this is one of the easier questions that I get asked.

There are a number of ways to revoke a will, but one of the best ways is to create a new will. Often one of the first lines within a will includes a clause that revokes any existing wills or codicils. Upon executing a valid will, this clause thereby revokes any previous will that has already been executed. This can be important if you lose a will and the estate later becomes contested. By having a valid newer will that has revoked any previous wills, the probate court will obviously look to the most recent will in determining how to handle the person’s estate.

March 18, 2014

Important Steps for Every Estate Plan

by Ryan Simmons

Having an estate plan in place is important for every individual. An estate plan is a set of legal documents that sets forth what you would want to happen to your assets if you were to die or become incapacitated. An estate plan can also establish a decision maker in the event that you are no longer able to make decisions for yourself. A Nashville estate planning attorney can help you draft the necessary documents that you need to protect your assets and provide for your loved ones.

There are a number of key steps involved to drafting your estate plan. The following will provide you with some of the most important steps:

1. Inventory Your Assets and Debts

March 4, 2014

What Happens If Someone Dies Without a Will in Tennessee?

by Ryan Simmons

You may or may not have a will in place. In fact, a large portion of the population does not even have a will. Although it is always best to have a will in place for a number of reasons, Tennessee law sets forth where a person’s assets are to be distributed if he or she dies without a will. The legal term for the person who died is the “decedent” while the term for dying without a will is known as dying “intestate.” Accordingly, the laws of intestacy set forth how an individual’s estate, or more simply put things, will be divided upon his or her death. This determination is based strictly on familial relationships. Obviously, not every family situation would be best suited by a distribution of assets based upon the law.

Under the Tennessee laws of intestacy, the statutes set forth which relatives can recover and exactly how much they receive. Obviously, if the decedent had a spouse and/or children, they are given priority. If a decedent left a spouse without any children, the spouse is to receive the entire estate. If the decedent left a spouse and children, the surviving spouse will receive either one-third of the entire estate or a child’s share of the estate, whichever one is bigger. In other words, the smallest portion of the estate that the surviving spouse could recover would be one-third. If the decedent left only one child, the surviving spouse and child would split the estate with each receiving one-half.

If the decedent did not leave a surviving spouse, priority of the distribution of the decedent’s assets is given as follows. First priority is given to any children with each child to be given an equal share of the entire estate. However, if there are no surviving children of the decedent, the parents of the decedent are to recover in equal shares of the entire estate. If the decedent does not have any surviving parents, the estate is divided up between the decedent’s siblings or the siblings’ children if the sibling is no longer living. If the decedent does not have any surviving siblings or children of the surviving siblings, the estate is divided among the decedent’s grandparents.

February 25, 2014

Tennessee Probate Options

by Ryan Simmons

Working as a Tennessee probate attorney, I get calls every day from people asking whether or not their loved one’s estate will have to go through probate court. Probate court is the court that oversees the payment of any debts and the transferring of a person’s assets after a person’s death. Like so many things in the legal field, determining whether an estate needs to be probated depends on a number of factors. Each person’s estate is different and is comprised of different types of assets. Thankfully Tennessee offers different options for those estates of varying sizes and types.

Only Certain Assets Are Probate Assets

Only certain assets are required to go through some type of probate administration. Generally, only those assets that the decedent had in his or her name alone are required to go through some probate administration. If the asset has a listed beneficiary, is owned jointly with another person, or has a transferrable on death designation, the asset is not required to go through probate court as it transfers immediately upon a person’s death.