The reason to create a last will and testament is simple: it provides a way to give the people you have left behind instructions for your assets and belongings after you die. However, how you create that will can be a little more complex. While you aren’t technically required to hire a lawyer to draft a will, failing to do so can lead to costly problems for your family and others.
For Example: the Estate of James M. McKinney
To illustrate an example let me share with you a story about the Estate of James M. McKinney (Tennessee Court of Appeals Opinion dated June 9, 2022). In this case, a man created a will online without consulting an attorney. Unfortunately, the gentleman listed only one of his two daughters in the online form. However, the will had language that left his property to “all of his living children”. Because the language was unclear in the online will form, both daughters have found themselves unsure of their inheritance.
While the most recent decision has said that both daughters inherit under the online will, there is no clarity on whether that is what their father actually intended. This serves as an important reason why it’s important to hire an attorney in the first place. Both women have already spent two years of their lives, as well as a lot of energy on this case. The cost of an attorney to guide you in preparing your will and estate planning documents is much less expensive than what your family will spend to challenge an inaccurately drafted will in court. We’re guessing that Mr. McKinney wanted one, or both, of his daughters to inherit money from him, instead of their lawyers. Things would have been easier for his family if he used a lawyer to write a Will for him.
Holographic Wills must be proven in court with witnesses who can verify the handwriting of the deceased.
Holographic Wills
While the legal requirements of a will vary by state, some allow you to make a handwritten will, called a “holographic” will. However, it is more common for people to type their will. A typed will is easier to read and has a cleaner look. One of the drawbacks of a handwritten will is it often requires handwriting verification in court. While a Tennessee will prepared by an attorney can usually be admitted to probate without the need for any witnesses, a holographic will with the same provisions will require two witnesses who can identify the will-maker’s handwriting to come to court. Keeping in mind how much we type and text these days, we expect it will be more and more difficult to find these types of witnesses as time goes on.
Online Will software
Many services have popped up that offer do-it-yourself-will software and other legal documents. These services might work fine if you are a single individual and have little or no property. However, the rest of the population should not use these programs. Now we’re not making this statement because we’re in the will-making business. We want you to know that there are risks involved when attempting to create legal documents on your own, whether it’s a will or a business agreement. With a will, you will not be able to make any corrections if there are mistakes since it is a post-death document. Even Consumer Reports concluded that none of the will-writing products was likely to entirely meet a person’s needs unless those needs are extremely simple. In short, using a professional to write a Will is a better option.
You get what you pay for
If you read the fine print on the DIY will form, you will notice that there is no legal advice. There is no attorney-client relationship! And if you want to talk to an attorney, you are going to pay extra for it. Even if you pay for an attorney from the software company to speak with you, they may not even be licensed in your state! The saying “buy nice or buy twice” comes to mind here. While you think you’re saving on legal fees by using online software, you may have to pay for an attorney to advise you anyways. And what if the document falls short? You’ll have to pay an attorney to either fix it or start over. In other words, if you are going to do it yourself, be prepared to pay someone to fix it.
At Graceful Aging Legal Services, even if your needs are simple, we want to help you find a way to make the process easier for your family. This is what most of our families are really looking for. Our firm can guide you and your family through the process both before and after death.
Getting legal advice from an attorney is so important
Everyone’s situation is unique. If you aren’t well-versed in elder law, why would you chance making a legal document without consulting an attorney? Attorneys are called “counsel” for a reason! It just makes sense to consult an attorney to make sense of your assets in regard to your situation. You’ve worked so hard, why would you take risks with what you’ve built over your lifetime. You need a lawyer to definitively determine whether or not your needs are indeed simple. Here is a sample of the questions to consider:
Do you know if your estate is expected to be taxable under state or federal law?
Do you own significant amounts of tax-deferred retirement plans?
Do you know how to fund that revocable trust that you created online?
Is there anything about your estate that is unusual, such as having children from a previous marriage or a dependent who lives with a disability?
If you have any questions about your estate plan, you need to see a lawyer!
An attorney makes the process easier
Even if your needs are simple, an estate planning lawyer who practices in probate court could help you find a way to make the process easier on your family. This is what most of our clients and their families are really looking for. A legal form found online or at the office supply store will not be able to guide you through the process like an attorney can.
The best lawyer to hire to help you create a solid estate plan is someone who can help hold your family together during the probate process. That’s what we want, it’s what our clients want. Probate is stressful, but we love helping our estate planning clients ease that stress for their families in advance.
Not hiring a lawyer to write your will can lead to problems that drag your estate out in a lengthy court process, which is expensive and stressful for your family. We want your family to benefit from your estate. Our attorney, April, decided to enter into estate planning practice after the probate of a loved one became contested. You don’t want to put your family through that. You can count on our experiences to guide us in creating a peaceful plan for you and your family.
If you are on the fence about having an attorney draft your Will, consider taking our Virtual Estate Plan Challenge. This 7 email series will walk you through the decisions you need to make regarding your assets and property.
One of your main concerns when drawing up an estate plan in Nashville will be appointing a guardian for a child in case of death. As a parent, you likely consider “what if’s” every day. Estate planning is no different, especially when it comes to your children. There are multiple considerations to keep in mind when thinking of a potential guardian for your children. We will go over a few of these below.
What if I Am No Longer in a Relationship with My Child’s Other Parent?
Tennessee law presumes that the parents of a minor child are the child’s “natural guardians”. If one parent dies before the other, the surviving parent will usually obtain full custody of the child.
If parentage has not been legally established, you may want to appoint the child’s other parent as the legal guardian in your estate plan. Naming the other parent will ease the transition through the legal system. A court may need to establish a child’s parentage if they were not married at the time of conception and birth. A court will decide a child’s parentage for custody or inheritance purposes.
Hopefully, there are no concerns about your child’s welfare if they need to live with their other parent full-time. However, if you have concerns, consider them objectively and put them in writing. Write down the name of the person you prefer to appoint as the guardian of the minor children. The only way to make sure the other parent does not gain custody is to have their parental rights terminated. This is an extreme measure.
If the surviving parent is the father, a paternity test will be required before petitioning the court for custody. Paternity can be established through a signed birth certificate, an acknowledgment of paternity form, or a blood test. Establishing paternity typically grants a father certain rights in regard to his child. However, paternity is not a guarantee that he will be awarded custody of the child. The court will use its own judgment to determine which guardian would be in the best interests of the child.
What If I Am Married to My Child’s Other Parent, but Something Happens to Us Both?
Generally, the surviving spouse will be granted custody of any minor children. But what happens if you both die? You must consider who you want to care for your children in the event that neither of you is living. Failing to do so could result in confusion and trauma for grieving children.
Many people make the mistake of believing that if you die, the guardian of a child will be granted to grandparents, aunts, or uncles. However, if the will does not specify a guardian, the court may be faced with multiple petitions for guardianship from family members and friends. In this scenario, the judge will choose a guardian with no input from you. So, what should you consider when choosing a guardian for your children?
Who should I consider appointing as a guardian for my children in my will?
Did you know that you can appoint different guardians for your child to manage different aspects of their future? The most obvious guardian is the one who will have custody and take care of your child. This guardian will provide a home and make important decisions for your child. These decisions can be about doctors, schools, and how they maintain relationships with friends and family.
You may also decide to appoint a separate guardian for your child’s financial future. This person would be in charge of the administration of a trust or other financial planning arrangement. If you want to learn more about leaving property to a minor child, read this article.
Whether you appoint one or multiple guardians, you will need to carefully weigh several important factors such as:
Who is the best guardian for your child if you die?
Age and Ability of the Guardian
Your first choice for your children’s custodial guardian might be your parents; after all, they raised you! However, it is important to consider your parents’ age and physical ability to care for your children. This may be especially relevant if your children are younger or have special needs. Similarly, think about your preferred guardian’s emotional ability as well. Appointing your younger sister as a guardian for your child who has yet to finish school or maintain a job may not be the best choice. You will need to choose someone who is both physically and emotionally capable of providing for children.
Religion and Education
If you intend for your children to follow certain religious practices or receive a certain type of education, it is important to choose a custodial guardian who holds your values or who you know will follow through with your wishes. Naming a specific church or school that you want your children to attend does not mean that your custodial guardian will have to obey that wish.
Location of the Guardian of your Child
You will also need to decide if it is important that your children are raised in a certain city or state. In some cases, your desired custodial guardian may not be able to relocate for the sake of your children. In that case, your children may need to move to the custodial guardian’s home or you may need to select somebody else.
Specify each child’s guardian(s) and their role in your will
Finally, be sure to name all of your children in your will, and specify what role you want each guardian to play for each of them. Your attorney may advise you to select both a primary guardian and an alternate guardian. Most importantly, do not forget to ask your guardian if it is okay to name them in your will. As your children age, you may want to change the legal guardian. Ask a qualified attorney to help you modify your will if you want to do this.
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Did you miss our live webinar about co-executors or co-trustees for your estate?
What it’s about
Many people want to appoint two or more people as joint decision-makers for wills and trusts. April and Mollie host a Q&A about when that’s a good decision….and when it isn’t.
Join Attorney April Harris Jackson of Graceful Aging Legal Services, PLLC, and Mollie Lacher of Sunny Care Services for a discussion on the subject of choosing the right executor(s) or trustees… and why it’s so important.
This webinar is free, so please sign up today to learn more!
As a parent, you want your child to lead a happy and fulfilling life and have healthy marriages of their own. However, it is hard to ignore the possibility of divorce. No matter how much you may love your child’s spouse, your interest is always in protecting your child. So when estate planning, how can you ensure that your child’s inheritance will not be split with their spouse in a divorce?
Division of property in a divorce will depend upon whether the property is considered “separate property” or “marital property”.
What is the difference between separate and marital property? Separate property is the property that belonged to an individual before marriage. This can include monetary assets, cars, real estate, and sometimes even pets. Marital property, on the other hand, is the property that was acquired or shared during the marriage. So what happens if your child puts their inheritance into a joint bank account? To answer this, we need to discuss how Tennessee law views inheritance.
How does Tennessee view “inherited” property in a divorce?
In Tennessee, inherited money or property is generally considered to be separate property. This means that whether your child inherits before or during their marriage, the court will treat the inheritance as exclusively belonging to your child. They are not obligated to share it with their spouse. However, have you ever heard a long-married couple say “what’s mine is yours, what’s yours is mine?” Many couples treat property this way, which can work well unless the couple decides to separate. This brings me to a very important point:
If your child puts an inheritance into a joint banking account shared with their spouse, it would become marital property subject to division at divorce.
How can you ensure that your child’s inheritance will be divorce-proof, no matter how your child handles the inheritance?
One way to ensure the safety of your child’s inheritance is to set up a Family Trust. In general, a family trust is an estate planning tool that protects your family and your assets. A family trust is a three-party relationship between you (the Grantor), your child (the Beneficiary), and the person in charge of maintaining and distributing the assets in the trust (the Trustee). Through a Family Trust, you will be able to determine how and when your assets will be distributed by the Trustee to your Beneficiaries after your death.
In the divorce context, a Family Trust is a great option because the property is held by the Trustee. This means that on paper, the property from the Trustee will not technically belong to your child. So in the event of a divorce, a court will not consider the assets from the trust for division. Family Trusts are generally flexible and easy to set up, and they are even cost-effective. Of course, if a Family Trust is not right for you, your estate planning attorney will be able to provide alternate options to achieve the same goal!
Do you need a family trust to protect your children’s inheritance?
Of course, nobody wants to believe that their child’s marriage will end in divorce. However, estate planning is all about considering life’s “what if” questions. In the end, setting up a trust for your family will allow you and your child the confidence that their inheritance is safe.
To learn more about trusts and other estate planning tools that Elder Law Attorneys in Tennessee use, follow us on Facebook or Instagram!
Probate is the legal process of transferring some of a deceased person’s assets to their heirs. Once you or someone you love passes away, there may be questions about what specific assets and property within an estate actually have to go through probate court, and which assets pass directly to beneficiaries. The short answer is that only assets that a person owned that were in their own name, alone, must go through probate.
The Probate Estate
Assets that go through probate make up what’s called the “probate estate.” For example, an individually owned bank account with no named beneficiary or a car titled only in an individual person’s name will pass through probate.
All other assets pass to the named beneficiaries without going through the probate court.
So, what are some specific things that do not pass through probate?
Here are a few examples:
Property held in joint tenancy with a right of survivorship
Any assets or real property held in joint tenancy (with a right of survivorship specified in the deed) by the deceased and one or more other people doesn’t need to go through probate. When one owner dies, the survivor(s) automatically owns the property.
Property held in tenancy by the entirety
If the deceased individual owned real estate with their spouse in tenancy by the entirety, the surviving spouse is automatically the sole owner when the other spouse passes away.
Payable-on-death bank accounts
A payable-on-death bank account is an account that passes to the beneficiary at the death of the account holder, therefore it does not pass through probate. Check with your bank to see whether your bank account(s) have payable-on-death beneficiaries.
Assets registered in transfer-on-death form
Tennessee residents can name transfer-on-death beneficiaries for securities. Assets registered in the transfer-on-death form pass directly to the named beneficiary without needing to go through probate.
Life insurance proceeds
When life insurance policies or annuities specify a beneficiary, the proceeds do not go through probate.
Retirement accounts
The funds in retirement accounts do not go through probate if the account holder designated a beneficiary.
Trust assets
Assets held inside a Trust by a Trustee do not go through probate.
Probate doesn’t have to be complicated
Learn how to prepare for and navigate probate
Overall, knowing which your assets must pass through probate, and which do not pass through probate, can save you a lot of unnecessary stress and confusion. Designating probate vs. non-probate assets is an important part of your overall estate plan strategy. It is important to take the time to talk to an attorney in order to identify your assets, decide who your beneficiaries should be, and determine what the best method is for those beneficiaries to receive their share.
We invite you to participate in our “Estate Planning Challenge,” which is a daily email campaign where you can identify all of the people, assets, and decision-makers that you will need to consider before meeting with an attorney to further discuss your estate plan.
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!
