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!
April Harris Jackson is an Elder Law attorney based out of Nashville, TN. She is also a Chairperson of the NBA Estate Planning and Probate Committee.
You don’t have to be wealthy to benefit from creating a trust fund! Create a revocable trust with our Nashville attorney as a part of a well-thought-out estate plan. All it takes is proper planning and administration. Come learn the basics with us!
What is a Revocable Living Trust?
A revocable living trust (also known as a living trust or revocable trust) can be a great way to help your loved ones protect their wealth and pass it down to future generations. It does this by creating a legal arrangement in which assets are placed within a “trust” and managed by a trustee(s). In most cases, when you set up a revocable living trust, you are also the trustee.
Why would I want to set up a revocable living trust?
There are many benefits to setting up a revocable trust to pass on your assets. One of the main reasons someone sets up a revocable living trust is because they want 100% control over how and when the assets will be used. This provides protection for your assets and prevents mismanagement. Many people prefer to set up a trust over a will because it provides a private, and hassle-free transition of assets to the family. You can set up a trust to fund many of your family’s future financial needs. For example:
Use a trust to pay for college
Parents often wonder if they should fund their children’s college education through loans, a 529, an IRA, or a trust. There are pros and cons to each option, and it ultimately comes down to what the parents feel is best for their family. A trust can be a little more flexible and offer a way to provide a continuous flow of benefits. This is perfect for a parent that wants peace of mind when it comes to their child’s future.
Provide financial support for a person with a disability
Estate planning for someone with special needs requires a lot of consideration. A trust is a powerful tool that you can use to provide financial support. While Special Needs Trusts are unique and irrevocable, an attorney can create provisions for a revocable trust to become irrevocable after your death. Special Needs Trusts provide stability and predictability in a person’s life, allowing them to maintain financial stability after you are gone. It can also help an individual with special needs remain eligible to receive Medicaid benefits. If you are worried about supporting a person with a disability, reach out to us! Our team is here to help.
Use a trust to donate to a charity
A trust is a great way to simplify the process of donating to a charity. Using a trust to fund a charity is private and much easier to create than a foundation.
Pass down your large assets with a trust
A trust can be a great way to pass down large assets, such as a house, to loved ones without having to go through probate or other legal hassles. This is because a trust agreement creates a legal document that outlines who will own the property and how it will be managed. Certain types of trusts can also protect your assets from being taken away by creditors or the government.
Determining Whether a Trust is Needed
When creating an estate plan, one of the decisions you will have to make is whether a revocable trust is needed. If you want to do something more complicated than an outright transfer of assets at death, a revocable trust is probably right for you.
Advantages of a revocable trust
Here are some of the advantages of a revocable living trust in Nashville, TN
Avoid probate – If you’re like most people, you want to avoid your family being exposed to the lengthy process of probate court. A well-managed trust negates the need for this.
Privacy – Privacy is a cherished commodity and many of us would like to have some degree of privacy when it comes to our finances. A revocable trust can provide a way for people to have privacy while still maintaining control of their assets, even after death.
Provide for future generations- A revocable trust can distribute outright at a certain time or may provide for generations past the creator’s own children. If you have concerns about how your children or their spouses may spend their inheritance, a trust can be a way to make sure that assets are used in a prudent way and preserved for future generations.
Disadvantages of a trust
Hiring an attorney – The upfront fee of hiring an attorney can intimidate people and can be seen as a disadvantage to setting up a trust. However, the cost should not be a determining factor. An estate planning attorney will understand the legal system and its implications on your estate.
Asset accessibility – A family trust may be less accessible to beneficiaries than other types of estate plans.
Difficult to change – It can be more difficult to change or revoke a trust than a will.
Revocable living trust vs a Will – What’s the difference?
The difference between a living trust and a will is mostly timing and control.
A revocable living trust allows you to change the terms or revoke the trust. It “lives” and operates alongside you while you are alive. This is important because it gives you the ability to control your assets and make decisions about how your money is used. You can also change your mind about how your money is used or who gets access to it after you die.
A Will, on the other hand, only goes into effect after you die. It specifies to the probate court how you wish for your assets to be transferred.
A revocable living trust is designed to become irrevocable after a certain event occurs- often the death of the first spouse in a long-term marriage.
Step-By-Step Guide: How to set up a revocable living trust
Step 1: Hire an Estate Planning Attorney near you
Regardless of the size of your estate, you must get counseling from a qualified estate planning attorney in your state. While every law firm is different, most follow a process that is similar to this:
How to hire an estate planning attorney
Reach out to a law firm
At Graceful Legal Services, PLLC, we offer you the chance to see if we are the right fit for each other first. The first step is to schedule your free 15-minute call. During this call, you will discuss your needs and your situation. Our intake coordinator will let you know if we can help you and give you an estimate of the attorney’s fees. If we are a good fit, and you decide to move forward with our services, you will be invited to schedule an hour-long Strategy Session with our attorney.
Do a paid consultation with an attorney
At GALS, we offer an hour-long Strategy Session. At your Strategy Session, you get to discuss your situation with our attorney, ask questions, and share concerns. After our attorney gets all of the details, they will provide a recommendation to fit your needs. They may recommend a specific kind of trust or discourage you from making one altogether. Our firm will also provide a step-by-step plan of action that you can use to achieve your goal. In other words, get a consultation with an estate planning attorney to help you decide what is best for you based on your assets, your family situation, and your goals.
Hire an attorney to carry out your plan
After your consultation, you will know if you need to hire an attorney. Let’s assume that you do at this point. It will be up to the firm to send you their contract for legal representation. We call this a “Representation Agreement”. Once you sign the Representation Agreement and pay the retainer fee, you become a client.
A word of caution:
Please do not set up a revocable trust online or by yourself. While we would love to send people to a less expensive option, the truth is that things get so messed up when you’re dealing with trusts. Our firm has tested many of the will and trust drafting software (curiosity killed the cat, right?) and there’s a lot of room for error. You cannot imagine how messed up a trust like this could be.
The key point is this: If you are going to set up a trust, hire an estate planning attorney to discuss your options. There are rules that need to be followed in order for a trust to operate correctly.
Step 2 – Gather Information Needed to Create a Trust Document
A trust document is an important legal document that sets forth the terms and conditions of your trust. Your estate planning attorney will be responsible for the meat and potatoes of the trust document. However, you will be responsible for knowing who the players will be. You will also be responsible for outlining the assets and property you would like to place within your trust.
At GALS, we use decision-making software that makes everything easier. If you would like to get a glimpse of the software, consider taking our Virtual Estate Plan Challenge. With this 7-email series, you will be guided through thought exercises to prepare you for creating your estate plan. At the end of the challenge, you will be invited to try out the software. It costs nothing and it’s easy!
In order to understand the trust document, you need to be familiar with these legal terms:
Legal Terms in a Trust Document
Grantor
Grantors are the individuals or entities who transfer assets and property to the revocable trust. A grantor is a person who signs the trust document as the initial settlor.
Initial Settlor
The person who sets up the trust. Same as the Grantor.
Trustee/Executor
The person or entity who administers the trust. You can have more than one trustee but it’s not common. Sign up to watch this Webinar: It Takes Two, or Does it? if you would like to learn more about having multiple trustees or executors. The trustee you choose must be completely trustworthy. Choose your trustee wisely. If you are unsure about trusting someone you know, hire an attorney or a Trust Company to act as the administrator of the trust.
Successor Trustee/Executor
The trust document lists who will be the successor trustee in the event of incapacitation or death of the first trustee.
Beneficiary(s)
A beneficiary in a revocable trust is someone who receives benefits from the trust, such as income or property. The beneficiary can be an individual, business, charitable organization, or any other legal entity. A trust can have one or more beneficiaries. The beneficiaries may receive the trust property either immediately or at some later time. A trustee must distribute the trust’s assets to the beneficiary whenever the trustee determines that the beneficiary is entitled to those benefits. The beneficiary’s name(s) must appear on the trust document.
In addition to naming beneficiaries and how you will fund the trust, you will also need to outline how the trust assets will be managed and distributed. What are your terms? Do you want your children to inherit from the trust at a certain milestone or date? Do you have stipulations you would like followed? Your attorney will make suggestions of what to do.
Step 3 – Sign and notarize the trust agreement
The state of Tennessee requires that the trust agreement must be signed and notarized in person. The process of notarizing your revocable trust provides a layer of security and helps to prevent fraud. It also helps to confirm validity after the grantor dies.
Step 4 – Transfer assets into the trust
Every asset that you want in the trust needs to be transferred. This means that all titles (house, bank accounts, etc). need to be transferred and renamed to that of the trust’s name.
In conclusion
Setting up a family trust in Nashville is a relatively simple process that can provide a great deal of financial security for you and your loved ones. By following the steps outlined in this article, you can rest assured that your assets are well-protected.
If you are considering hiring a lawyer to set up a trust in Tennessee but are unsure if it is the right option for you, don’t hesitate to schedule your initial call with us. We can help you determine if trusts are right for you and if we can help create one that meets your specific needs. Our free 15-minute call can provide you with the information you need to make an informed decision.
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.
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!
