Dying without a will is unfortunately very common. If you die without a will, your property will likely go through a court process called probate and will ultimately be distributed according to Tennessee’s intestacy law. Here are some common events that may happen if you die intestate:
Your immediate next of kin, whoever they are, will likely inherit your property first. If you die intestate, everything goes to your next of kin. Your next of kin are the people who have the closest relation to you. Your children are first in line, along with your spouse if you are married at the time of your death. Otherwise, it’s your closest relatives. For example, say you die intestate without a spouse, children, or parents. Your next of kin could be your much younger half-sister or a cousin you’ve never met. Whoever fits the “closest living relative(s)” criteria will inherit everything after the estate pays your debts and taxes.
That son- or daughter-in-law you don’t like will get your property before that niece or nephew you do like. Marital property owned by your children is governed by the laws of the states they live in, not you. If they live in a communal property state, they’re sharing the inheritance, 50/50. While the laws are different in every state, property acquired during marriage by either spouse may be marital property, especially if it was used for the benefit of both spouses.
A little bit of money up for grabs can have a cooling effect on interfamilial relationships. In a perfect world, family members would all get along, never be jealous, and always do right by each other. This isn’t a perfect world. Intestacy law doesn’t take into account the relationships the deceased had with anyone or what the deceased orally promised to someone. Even if widowed Uncle Bob told you he wanted you to have his ’65 Thunderbird, without a will, the car is going to his son…who doesn’t even have a driver’s license. When families start fighting over estates, lawyers get a lot of money and the family gets a lot of heartaches, so it’s best to put your wishes in writing so everyone knows what is expected in advance and the Court has authority to enforce your wishes.
If you’ve recently lost a loved one who did not have a will and have questions about their estate’s administration, you should speak to a probate attorney for guidance. If you need assistance, we invite you to contact us to schedule a consultation.
At some point, everybody thinks about creating a Last Will and Testament. However, many never do. Having a conversation about what will happen to your belongings after your death- and then seeing it on paper- is a daunting task.
So, what happens if you never do it? We’ll give you our best lawyer answer- it depends! When a person dies without a will, they die “intestate.” Every state has different intestacy laws that dictate who will inherit a person’s property when they die intestate. So who inherits your things depends largely on what state you live in, and your family composition. Below we detail what will happen to your estate if you die intestate in Tennessee.
What happens when you die intestate in Tennessee?
Are you married with or without children?
Let’s start with the simplest scenario: if you are married with no children, your spouse will inherit your entire probate estate. However, this will change if you do have children. If you are survived by your spouse and one child, each will inherit one-half of your estate. Additionally, if you are survived by your spouse and more than one child, your spouse will inherit one-third of your estate, with the remainder split evenly among your surviving children.
Let’s say you die without a will in Tennessee while unmarried or widowed with children…
If you do not have a spouse or are widowed, your estate passes to your children. All of your biological and/or legally adopted children inherit equally. In some cases, children are able to prove their parentage by DNA testing after a parent has passed in order to claim part of the estate. All children will inherit equally, so it is important to inform your family of all children who may have a right to inherit from you.
What happens in the tragic case of a child dying before a parent? If your child gave you grandchildren before they passed, then their share of inheritance will pass to those grandchildren. Otherwise, their share will be split among your other children.
Or you die while unmarried without children…
Let’s say you are not married and you have no children, but your parents survived you. Your parents will inherit your entire estate. If neither of your parents survived you, your estate would then pass to any siblings you may have.
I don’t have any close heirs. Who gets my assets if I die intestate?
But wait: I am not married, I have no children, I survived my parents, and I have no siblings. What now? In this case, a probate attorney may need to do what is called an “heir search” which is basically creating a family tree to find your closest relative(s). Your closest blood relatives will receive your estate. In the event that they cannot be found or do not respond to the attorney, your estate may be deposited with the Probate Clerk’s office and ultimately turned over to unclaimed property.
Who will inherit your assets?
Create a will if you want control over who inherits your estate
Of course, the easiest way to avoid confusion and know for certain where each piece of your estate will end up is to create a valid estate plan including a Last Will and Testament. Thinking about what will happen after death is a daunting task, but in the end, it will save your surviving family more money and stress.
Do you want to get a head start on your Will or need to update your Will? Take our Virtual Estate Plan Challenge! We created this 7-email series to help our Clients and guests organize their thoughts about their wishes for their estate. You can use this information later on when you create your documents. Give it a try!
After the US Supreme Court issued its decision in Dobbs on June 24, 2022, women’s equality and reproductive freedom were completely diminished by the state of Tennessee. How does the Dobbs decision impact estate planning? Here are some questions to consider:
Question: Will children born outside of my marriage have a claim to my estate?
Our opinion: Yes. Tennessee law dictates that Minors inherit from their parent’s estate.
How would a forced pregnancy affect a man who did not intend to become a parent?
We are not family law attorneys, and if you become aware of a pregnancy by a previous sexual partner, we encourage you to speak to an experienced family law attorney to discuss your options. Please keep in mind that many issues related to child support, pregnancy, and parental rights will be subject to new interpretations of the law under Dobbs.
However, there are laws in Tennessee that protect minor children from being disinherited by their parents.
For example, if a man dies, all of his minor children are able to inherit from him. While he can disinherit unknown, nonmarital adult children through his will, he cannot disinherit minors, even if he has a Will.
So let’s say a man lives in Tennessee and gets a sexual partner pregnant. If he dies while the child is a minor, the mother can petition (on behalf of the child) for a share of the estate. She will have to prove paternity but the child can be acknowledged in multiple ways. This includes communications with the father or testing the paternity via the DNA of the father or his other children.
Yes, you can be proven a father even after you are dead. It doesn’t matter if this child is born before or after the children of your current marriage or relationship- if they are under 18 when you die, they can ask the Court for a share of whatever you left behind.
Question: What is the impact of Dobbs on Estate Planning for those who expect to need fertility treatments?
Our opinion: We don’t know yet.
This is a really tricky area. My best guess is that matters related to artificial reproductive technologies (ART) will be legislated faster than before. We will know more about the impacts on individuals and families as matters work their way through the courts.
As your Estate Planning Attorney I will recommend that we plan for everything, including unborn children
If you’ve ever made an estate plan with an experienced estate planning attorney, you’ll know that we ask some pretty personal questions about your family planning.
That’s because we usually try to make our plans flexible enough so that future children can be included without needing to pay an attorney to update your Will or Trust. However, we will probably need to update documents more frequently given recent changes to the law.
Additionally, we will want to make sure that we try to be specific enough in our drafting to disinherit unplanned offspring from outside of relationships. The same goes for any previously frozen biological material that could potentially grow into a fetus. Yet another impact of Dobbs on estate planning to consider!
As fetal cells attain more rights, estate administration may become more difficult
As cells are legislated to have rights of their own, it will become more difficult to administer estates. For example, let’s say that a man dies after having frozen embryos with his ex-wife. By many state laws, those are now “children” under the legal definition. It would not be unfair for the ex-wife to say she is the mother of children who outlive him and should inherit his estate. If at some point those children were implanted-whether in the ex-wife or someone else- they would have needs as they grew older and the father’s assets could pass to them. However, it’s more likely that these cells would never be implanted or may be implanted but not be carried to term, at which point, who inherits from the embryo?
Question: What else should we be thinking about?
Our opinion: A lot of things will need to go through the Courts before we have final answers. In the meantime, here are some things I expect:
Higher insurance premiums
Higher medical bills
Fewer OB/GYNs
Fewer fertility clinics
More single fathers.
Push to create a biological/DNA database to track parents/putative parents.
Doctors will be unwilling or unable to provide appropriate medical treatment for women undergoing miscarriages. This will make undergoing fertility treatments especially dangerous if you have had problems carrying a pregnancy to term.
By effectively creating a system where there are two patients in one body, the law in many states now creates a conflict in the standard of care. The doctor will not be able to take direction from the pregnant person. This will cause more lawsuits against fertility specialists and other OB/GYNs. More lawsuits mean higher malpractice rates, which mean even higher costs for patients.
Many surrogates will no longer be willing to help couples create families.
Frozen embryos will no longer be intentionally destroyed.
Fertility clinics may become unwilling to create embryos for future use if they will be unable to destroy the biological material.
Many more babies will be available for adoption. So will older children.
Fewer women will consider using ART, because the inherent risks of pregnancy will no longer be treatable.
There will be fewer medical advances for difficult pregnancies due to women choosing not to have children.
Young adults will begin long-term contraception at earlier ages.
These are just some things I’m considering as we enter this new legal landscape.
In conclusion
The implications of the Dobbs decision is completely unknown. However, we do know that it will have a huge impact on Estate Planning. If you’re looking for an attorney in Nashville who can create a thorough will, look no further. Attorney April Harris Jackson will consider everything, including the implications of Dobss on family planning.
Knowing a few common terms can go a long way in understanding estate planning. For example, if you’re unsure what a trustee and an executor are, you won’t know who to choose for each (very important) role.
Let’s dive into some estate planning basics!
Common Estate Planning Terms
Planning for your estate after death helps secure the future of your assets and helps you figure out what you want and how to accomplish it. Creating an estate plan gives you peace of mind that your wishes will be respected upon your passing – even if your loved ones may be unhappy about it.
An estate plan can also reduce tax obligations for your family and prevent or minimize family conflicts. A will is a significant part of the estate planning process. Wills outline how you want your assets to be distributed, who should take care of any dependents, and who will carry out your wishes.
When learning about estate planning, there are some terms you’ll need to know, including:
Probate – the court process that validates wills and administers the estate
Executor/Executrix – the person named in a will to manage estate assets
Trust – a legal tool used for managing assets, often in order to avoid probate
Trustee – the person named in a trust to manage trust assets
Personal Representative – the person who administers an estate (this is the umbrella term used in Tennessee for executors, etc.)
Guardian – a person who is named to oversee the needs of a minor child
Beneficiary – someone who is specifically named to inherit
Heir – someone who inherits based on their family relationship
Understanding these terms will help you make decisions that protect your legacy.
Creating a Will and Trust
Creating an estate plan can involve the use of wills and trusts.
A will outlines how you want your assets to be distributed after death, who should take care of your children, and who will handle the administration of your estate. However, the purpose of a will is to go to probate. When drafting a will it’s crucial to consider factors such as family dynamics, non-probate assets, and the potential for disputes.
On the other hand, trusts provide added benefits like privacy and flexibility. When well-funded, it bypasses the need for probate proceedings. Even without lots of funding, trusts enable you to better control how your assets are managed during your lifetime and after you pass away.
Whether you choose to have a will or trust is a personal decision, but setting up a trust can offer advantages such as increased control over asset distribution, continuity in managing your estate affairs, and potential tax benefits. Sometimes, it’s a good idea to have both!
Appointing Executors and Trustees
If your estate plan involves a will or trust, it is crucial to appoint executors and trustees.
An executor (or personal representative) is responsible for carrying out the terms of the will. For example, an executor must distribute assets and handle obligations during the probate process. It is important to choose someone with integrity, conflict-resolution skills, and financial knowledge. Since you won’t be there to smooth out any disputes that arise, choosing a capable peacemaker is a must.
Trustees, on the other hand, oversee trusts. They ensure that assets are managed according to your instructions for the benefit of beneficiaries. It is advisable to select a trustee with expertise in finance who’s committed to fulfilling your wishes. In other words, pick someone you can trust as your trustee.
Good options for executors or trustees may include attorneys or financial institutions, since they are generally impartial and have specialized knowledge. By ensuring reliable individuals or entities fill these roles, you can safeguard your intentions for properly managing your estate.
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When you aren’t clear about your wishes, you leave a blank space for your loved ones to try to fill in. This can be incredibly stressful to them – even if you’ve expressed your wishes to them but didn’t write them down – so it’s important to know your wishes ahead of time. Learn what could happen to you if you don’t make your wishes known.
What Happens if You Become Incapacitated in Tennessee?
If you become incapacitated in Tennessee (a temporary coma, for instance,) and have no medical power of attorney set, your loved ones may have to go to court and then a judge will decide who can make medical decisions for you if you’re unable to communicate your wishes.
Trying to determine your wishes after you can no longer express them can be an extremely stressful time for your family, which is why it’s so important to communicate your wishes ahead of time, just in case anything happens to you.
What Happens if You Die without a Will or Trust in Tennessee?
If you die without a will, that is called “intestate.” This means that whatever inheritance you leave behind, including your property, is subject to Tennessee intestate succession laws. Intestate laws typically leave your property to your surviving spouse and/or children, but parents, siblings, nieces, and nephews could become eligible too.
Here’s a quick breakdown of what would happen in Tennessee if you are married or have children:
If you have a spouse but no children, the spouse would inherit your entire estate, even if you’re separated.
If you have a spouse and children, the estate would be divided equally among all parties (except that the spouse can receive no less than 33% of the overall estate).
If you only have children, your estate would be split equally among all the children.
Keep in mind that only your biological and adopted children will inherit from you if you do not have a will. If you would like to leave part of your estate to step-children, foster children, godchildren, or other children who are close to your heart, you’ll want to make plans for that in your will or through non-probate beneficiary designations.
Here’s what would happen if you died unmarried and without children:
If you have a parent, the entire estate would go to your parent(s).
If you have sibling(s) but no living parents, the estate will be split equally among your siblings.
If you have no parents or siblings, the estate will be split equally among your siblings’ children.
If you’ve none of the above, the estate would be split equally among paternal and maternal aunts and uncles.
You don’t have to die to see how this one might end if you don’t write your decisions out!
Who Makes Funeral Decisions if You Die in Tennessee?
Similar to the above, if no one has been legally designated to make funeral decisions on their loved one’s behalf, it falls to the next-of-kin, which would be the spouse or adult children. Once the family member takes responsibility for making and paying for their loved one’s funeral arrangements, they sign a legal contract that obligates the funeral home to follow instructions from that family member alone.
Make sure you tell your family what you want so there’s a consensus during a difficult time..
What if there are no next of kin?
If there are no next of kin (as defined above) and no personal representative, any other person willing to assume responsibility and arrange the funeral (including the funeral director) can make funeral decisions, after attesting that a good faith effort has been made. As for your estate, if no family can be found it will ultimately be turned over to unclaimed property.
Learn More from Graceful Aging Legal Services
Don’t leave a blank space for your family members to fill in regarding your end of life wishes. Don’t keep them second-guessing. Instead, leave something that people can read like a magazine to know what you want your life – and death – to be like. Want more tips like this one? Sign up for our newsletter!
