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April Harris Jackson

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My spouse and I are separated. How do I disinherit my spouse?

My spouse and I are separated. How do I disinherit my spouse?

When one spouse wants to disinherit the other, but they are still married, it can be a complicated process. In most cases, disinheriting a spouse is only possible if you have a valid prenuptial agreement or if you are divorced. 

Let’s illustrate this with an example: 

Jack and Jill have been married for five years, and have one child together. Their house was purchased by Jill before they were married, and Jack’s name was never added to the deed. 

Jill recently discovered that Jack is cheating on her with the Instacart shopper. She and Jack are now separated and have started the divorce process, but she wants to make sure that if she dies before the divorce is final that Jack won’t get anything from her. 

What can Jill do? 

Jill can disinherit her spouse after the divorce

Unfortunately, Jill cannot disinherit Jack until she files for divorce. Tennessee law does not allow you to disinherit your spouse- even if you write a will that says that! My advice is to get divorced as quickly as possible. Unless divorced, Jack is entitled to his share. 

The good news is that once divorce papers have been filed, there will be an automatic injunction that specifies that the pair no longer have spousal rights on the property through marriage. This is primarily to protect things like bank accounts, real estate, relationships with the children, and health insurance coverage. However, all that does is prevent money from being spent by either spouse outside of regular expenses. Jill won’t be able to do anything, like estate planning, until after the divorce has been settled or through special permission from a judge. 

In the meantime, there are still a few steps Jill can take:

Utilize her prenuptial agreement

Jack and Jill signed a prenuptial agreement prior to their marriage. In it, they waived the right to inherit from each other. All Jill needs to do now is to rewrite her will to specifically omit Jack.

Divide assets into separate trusts

Jill can establish a trust under her name and place the house in it. Since Jack’s name isn’t on the deed or on the trust, he has no right to the house if Jill were to pass before the divorce is finalized. 

Rewrite her will

Jill can rewrite her will so that Jack only gets what he is entitled to by law, called his elective share. In Tennessee, spouses are entitled to a homestead allowance, a year of support, and elective share. The elective share amount depends on how long you are married. 

Hire a family law attorney

 The divorce will go much quicker with the help of a family law attorney. 

Jill can get a jump start on planning her estate.

Finally, if Jill is preparing for a divorce, she can take advantage of all the legal documents at her fingertips and get a head start on creating the estate plan she desires. Once her divorce decree is finalized, she can meet with her lawyer and sign the document to make it valid. 

Are you getting a divorce and want to start over with your own will and estate plan in Tennessee? Are you looking for a referral to a family law attorney? Let us know! We are happy to help you make plans for your new life. Not sure where to start? Give us a call. We offer a complimentary 15-minute call to see if we are the right fit for you and your situation. You can schedule your call by clicking here

How to Include Your Service Providers In Your Estate Plan

How to Include Your Service Providers In Your Estate Plan

A  Davidson County will and trust lawyer’s job is to make sure that you have all of your ducks in a row so that if you become incapacitated or die, your loved ones will know how to manage your estate and follow your wishes.  Laws in Tennessee vary from those found around the country, which is why you want to work with an attorney who is skilled in understanding your specific needs.  One area that should be considered is your service providers. 

Make a list of your service providers and put it in your estate plan

“Service providers” covers a wide range of individuals involved in your life.  Should you be unable to communicate with them, you want to ensure that your trustee, executor, conservator, or other responsible person is able to communicate with them on your behalf.  Having them all listed in one place will make this job much more manageable. 

Household Providers 

This list should include all of the people or companies that you deal with when it comes to the maintenance of your home.  In some cases, your home will need to continue to function in your absence, and your representative will need to be able to contact these people to make sure things keep running smoothly.  In other cases, whether you are deceased or incapacitated, there are certain services that you may no longer need, and the person in charge needs to be able to contact the service providers and cancel with them. 

Some examples of household providers that you will want to list might include: 

  • Computer support 
  • Food or water delivery 
  • Gardening 
  • Pet care
  • Housekeepers 
  • Heating/Cooling system maintenance 
  • Heating oil delivery 
  • House sitters 
  • Pest control 
  • Pool or spa maintenance 
  • Utilities 
  • Vehicle maintenance 

Basically, anything that you have performed on a regular basis should be noted, along with contact and payment information. 

Medical Service Providers 

You should also provide your representative with contacts for your medical service providers.  This information could be very valuable should you need medical attention but be unable to reach out to these providers on your own.  Additionally, if you have standing appointments with these providers, it will be helpful to have them canceled so you don’t accrue charges for services you’re not using. 

Some of the medical service providers you may want to include on your list are: 

  • Chiropractor 
  • Counselor 
  • Dentist 
  • Massage therapist 
  • Ophthalmologist 
  • Physical therapist 
  • Primary care physician 
  • Psychiatrist 
  • Specialists 

Personal Service Providers

There are other types of regular services that you may use, and you’ll want to include these as well for the same reasons already mentioned.  Some personal service providers to keep in mind for inclusion: 

  • Childcare provider 
  • Hairdresser 
  • Home care provider 
  • Meal preparation 
  • Transportation 
  • Tutors 

Additional Information 

Along with the contact information for these service providers, it’s a good idea to make notes about when they are expected, and you may even want to include service agreements and contracts.  For example, if you have a standing arrangement to have your sprinkler system blown out each fall, make a note of that. 

Your estate planning attorney may not include all of this information directly in your estate plan, but they will want to be able to assist your family with where it can be located when the need arises. 

If you are seeking estate planning services, please book a call with our office here .

Probate in Tennessee: Factors that Can Delay the Process and Strategies for Minimizing Delays

Probate process in tennessee

Probate is the name for the legal process of distributing assets after someone passes away. These assets can include bank accounts, real estate, vehicles, retirement accounts, life insurance, and financial investments. Before the assets can be distributed, however, they must first be gathered and used to pay creditors. 

After that, the heirs can finally receive their distribution of the estate. However, even then, there are several factors that can still delay the distribution process. In our practice, it is common for probate to last about nine months. In more complex cases, probate can easily last several more months or even years. These delays ultimately mean less money and more headache for the surviving family. 

Let’s go through the factors that cause delays in probate, and discuss what steps can be taken to minimize the delay.  

1. Passing away without an Estate Plan

If you pass away without an estate plan, your loved ones will have to go to probate court. The court will appoint someone among them to be the “Personal Representative.” The Personal Representative will be responsible for contacting all of the financial institutions about your death. They will also be responsible for using your funds to pay creditors and ultimately make distributions to your heirs. 

When there is no estate plan, the process for appointing a Personal Representative can be seriously delayed. The family will have to come to a consensus on who the Personal Representative will be before they present their choice to the court. Moreover, whoever is selected as Personal Representative is often not prepared for the role, as they had not been told to expect it. The process of going through all of your finances and contacting all of your financial institutions might be overwhelming for them, especially if they did not know your finances very well. Moreover, they will be responsible for mediating tension between the family, which is made even more difficult if members of the family do not think you explicitly wanted them to serve as Personal Representative.

Having an estate plan would minimize all of these consequences and delays. By having an estate plan, your family will already know who you want to represent your estate, which will make the process for appointing a representative much smoother. The person you select to represent your estate will also be better prepared for the role, as they are aware that they will one day need to fulfill the role. 

The best way to minimize delays in probate is thus to have a clear estate plan in place, and to let your family and loved ones know about your intentions. 

2. Family Tension

Even with an estate plan, family dynamics can still play a major role in probate. For example, if the only major asset that you have at the time of your death is your house, and one of your heirs would like to live in it while the other heirs would rather sell it and keep the sale value, tension will ensue and attorneys may need to get involved. All of this will ultimately lead to a delay of the probate process, and may ultimately divide the family in an irreparable way. 

Feuds such as the one described happen even in the most loving of families. To avoid these feuds, it is important to not only have an estate plan, but to have one drafted by an experienced estate planning attorney. An experienced estate planning attorney will be familiar with cases such as the one described and will be able to help you think through exactly what you would want to happen if these cases occur. Your estate plan will thus be better able to help your family navigate your precise wishes for your assets, ultimately easing tension and expediting the probate process. 

Hiring an estate planning attorney to draft your estate plan is one of the most important steps you can take to minimize probate delays. 

3. Financial Complications

If you keep your finances private, it will be difficult for your intended heirs to know what to expect after you pass away. They may not even know where you bank and what financial investments you have. The more difficult it is for them to know your finances, the more difficult it will be for them to notify your financial institutions of your death and gather accounts. 

Furthermore, if you are in debt or are not paying your taxes, your Personal Representative will be responsible for using your assets to pay your creditors and the IRS. This can cause serious delays to the probate process, especially if the Personal Representative was unaware. Creditors will ensure they receive their payments by filing claims against the estate through probate court. These claims ultimately slow down the probate process as each claim requires a hearing before a judge. 

To save your family time, headache, and grief after your death, it is important that you keep your finances in order. Pay off debt when you can, and keep a clear record of it. File your yearly taxes appropriately. Let your loved ones (especially your Personal Representative) know of your finances and how to contact each financial institution in case something happens. 

Even in the best of cases, probate takes a while. To minimize delays, we recommend having an experienced estate planning attorney draft your estate plan, clearly telling your loved ones of your intentions, and keeping your finances in order as much as possible. Your loved ones will already be filled with grief after your death. The best gift you can give them is preparation. 

Here at Graceful Aging Legal Services, we offer software that can help our clients keep their estate in order. Contact us at 615-846-6201 or hello@galsnashville.com if interested.

How to Talk to Loved Ones about Estate Planning

Talking about Estate Planning with Loved Ones

Talking to your parents about aging, illness, and death is hard. It’s one of the hardest conversations you can have–but it’s also one of the most important. The feelings that might come up during the conversation, if uncomfortable, are better than the feelings that would otherwise come up when an emergency happens and there is no plan in place for taking care of them (or even a consensus among relatives on how to move forward). As we always say in our office: “it is better to have a plan and not need it than to need it and not have it.” 

With that said, directly asking a loved one “hey, what would happen if you died today?” might not be the best way to start the conversation. So let’s consider some better alternatives to open the conversation about estate planning. 

1. Tell your loved one what you’re doing for your own estate planning

    Telling your loved one about your own estate plan, or your wishes to create your own estate plan, might make them consider making one themselves. Tell them what is in your Last Will and Testament, whether you have a Trust, and who you have chosen to act as your Power of Attorney. Hearing about your concerns for your own aging and death, and hearing how you’ve decided to navigate the future, will give them an idea of where to start, which is often the hardest part. Many people also struggle to decide on an estate planning attorney. It is important that the Nashville attorney they hire aligns with their needs. Hearing about your own process of hiring an attorney, and how you determined which one would be the right fit for you, can help them navigate the difficult world of hiring a Tennessee Wills and Estate Planning lawyer. 

    2. Talk about other situations that have happened that worried you or made you curious

      Many of us know at least one person who has suffered the loss of a loved one and then had to endure the resulting feud among the family. These feuds happen so frequently that a significant number of fictional stories are based on them. Unfortunately, plenty of them could have been avoided if a clear plan had been put in place. And these feuds rarely start right after the death—many of them start much earlier, when the loved one’s health began to decline and someone had to step up to take care of them. Estate planning does not just mean deciding what happens after you die; it also means deciding what happens if your health begins to decline. If there is no plan in place for declining health, it will be up to the family to decide what happens. Even the closest of siblings can begin to resent one another if they feel that their parents’ care is not being handled properly. 

      Although it is fictional, the feud in This is Us between the siblings regarding their mother’s care is an accurate portrayal of what can happen in these situations. The siblings argued on what kind of medical treatment their mother should receive, and again on where she should live and who should look after her. Although all of the siblings had the best of intentions and loved each other and their mother, the feud nonetheless happened. The mother sensed the feud would escalate once her diagnosis advanced, and so she decided to name her daughter (her most level-headed child) as her healthcare power of attorney. Although the siblings still butted heads with one another, the daughter was able to carry out her mother’s wishes. 

      There are plenty of other examples in books and TV of families feuding over a loved one’s care or death. Talking about these hypothetical situations might make it easier to begin the conversation about aging and death. 

      3. Ask what would happen to their children, pets, and home if they were in a medical emergency 

        While discussions about aging and death might be intimidating, discussions about medical emergencies might be easier to handle. Medical emergencies can happen to anyone at any time. Our office even recommends that eighteen year olds get power of attorney documents in place, as it is important for them to have someone able to speak to medical professionals on their behalf in the event of an emergency. Since medical emergencies can happen to anyone, loved ones who do not like having their age pointed out might be more receptive to the conversation. If you know your loved one is anxious about having a stroke or falling down stairs, and tends to avoid or shut down conversation about either of those scenarios, it might be a good idea to use another medical emergency in your conversation (like a car accident, for example). While it is important for your loved one to confront their anxieties, it is not always our place to force them into a confrontation. Using a more neutral example (like the car accident) instead of one they constantly worry about might be a good way to ease them into the conversation. 

        4. Ask if they can show you where their estate planning documents are 

          After signing estate planning documents with our clients, we tell them to please let their family know their wishes and how to find the original documents. After all, the estate planning documents are only as good as the family’s ability to find them. In the event of a medical emergency or death, the signer of the documents will not be able to locate them. If no one else knows where they are or how to find them, the documents become effectively useless. It is therefore of the utmost importance that loved ones know where to locate the original documents. If you know or suspect that your loved one already has a plan in place, ask them where the documents are and how they plan to transfer the documents into the right hands in the event of an emergency or death. 

          For more information on how to talk to your loved ones about aging, illness, and death, we encourage you to check out The Conversation Project.

          Can I create my will myself?

          Tennessee law permits you to write your own will. Some people choose to handwrite theirs. Online services are another popular way to create a Will and other important documents inexpensively. As long as the Will meets the legal requirements, it is  likely to be admitted to probate court in Tennessee. 

          However, just because you can do something doesn’t mean you should. Believe me, I love a bargain too- it can be really tempting to find a low cost option for something that is expensive and, well, a little scary.  Most people have never met with an attorney before and the idea is intimidating. It’s understandable. 

          However, a fellow probate attorney once said “online services are a probate lawyer’s best friend.” This is the prevailing thought among probate attorneys, because we see so many Wills that were not prepared by attorneys, and ultimately end up costing the family more in court costs than it would have cost to meet with an attorney and prepare the Will and other important documents. 

          I like to compare it to pest control. You know that if termites invade your house, it will end up costing tens of thousands of dollars to repair the structural damage they can cause. Would you prefer to pay $150 per year up front to prevent an infestation, or let them do the damage and then pay to fix it? 

          So let’s look at some of the issues that cause self-created Wills to have problems when we go to court. Here are some of the main pitfalls that we see with DIY wills: 

          1. Improperly Executed

          Unless you have legal training specific to estate law, you may not be familiar with the exact requirements of the type of document you are trying to create. Tennessee law provides for several types of Wills, and each of them have different requirements for signing. Some of them will require witnesses to come to court, which you may want to avoid. Fun fact: No Tennessee law requires a Will to be notarized. Guessing you didn’t know that! 

          2. Improper use or misunderstanding of terms

          A Will uses a lot of terms that we don’t use in everyday life. These words are used to communicate information to the Judge when the Will is probated. However, if you are writing your own Will or using a form, you may not know the effect that these words have in practice.  While our attorneys try to use more commonplace language when writing Wills, we need to be able to get your point across.  Words like “fiduciary,” “per stirpes,” “per capita,” “ademption,” and “executrix” are not terms we use, but as experienced estate planning and probate attorneys, we know how to use them correctly to carry out the plan you have in mind. In DIY documents, you may ignore terms that you don’t understand that seem to be boilerplate, or may not fully understand the effect that they will have when your plan is carried out. 

          3. Missing essential elements

          I’ll never forget the day that I had to tell someone that they were unable to help their parent because the Power of Attorney that had been created online did not give them authority to do what needed to be done. I wanted to help, but my hands were tied. In another situation, someone hand wrote their Will but left out an essential part.  Because we didn’t have any specific instructions from the Will, we had to go to Court multiple times for Court approval to do things that we were pretty sure they wanted. Those court hearings cost the estate more money than it would have to have an attorney help with the original Will. 

          4. No contingency plan

          One of my least favorite things to do is talk to parents about contingency plans. Usually this means asking who would inherit from you if your children died before you did. No one wants to even think about that. But for estate planning purposes, it’s very important to always have a back up plan. We hope for the best and plan for the worst. And that means discussing uncomfortable things. 

          5. Plans that are not logistically sound

          In a social setting one time, someone mentioned to me that they had created their Will online. They were open to sharing about the experience and mentioned that they had named their parents as their beneficiaries in their Will.  There’s nothing wrong with this, but it requires some additional thinking through things.  Parents are older than their children, and in most situations the children will outlive the parents.  At Graceful Aging Legal Services, PLLC, we want to help you create a plan that needs to be reviewed but hopefully requires few revisions except at big transitions in your life. If you pass away without making changes, we want your planning to go the extra mile for you.  Let’s say that you name your parents as beneficiaries of your Will, but no back up beneficiaries. You figure you can update it later- but never get around to it. Eventually you pass with no named beneficiaries, which defeats the purpose of making a Will.  An experienced estate planning attorney can help you avoid situations like this and worse. 

          6. No probate-avoidance planning

          Another thing people are confused about is thinking that a Will helps avoid probate. It doesn’t. The purpose of a Will is for a probate court to know what you want when you die so they can carry out your wishes. In a meeting with a good estate planning attorney, you will talk about your goals for your assets when you die and create a plan. Oftentimes we are able to guide clients how to avoid probate.  One of my favorite things is when someone comes to us for probate and we are able to tell them that good planning means that they don’t need to go to court. 

          7. Validate of the Will is easier to challenge

          Although having options to create a Will yourself may be beneficial to some, it also creates opportunity for bad actors- or the perception that people are acting with impure motives. Imagine a scenario where your neighbor asks you to draft a will off the internet for them to sign. You may be called into Court to testify about how the Will was created, your neighbors medical condition at the time the Will was created, to what extent you helped, and if you inherited anything you’ll be looked at with additional scrutiny.  Having a lawyer involved not only protects the Will and the Will-maker, but also the family and friends involved. We know how to prevent claims of undue influence and ensure the Will document is valid. 

          When you write your own Will, you don’t know what mistakes you might make.  Unfortunately, by the time the Will is submitted to probate, you won’t be around to make clarifications. The Court will have to go by what is written in the Will. Your family will be stuck with what you wrote, or risk the Court finding that your Will is invalid and throwing out all of the work you did to create it in the first place. If your family thinks that you didn’t mean what you wrote, they will have to pay additional costs to help the Court figure out what you meant.  When that happens,  lawyers get more of your money and your family gets less. 

          We prefer to work with families who get along, and are on the same page when it comes to their loved one’s estate. It makes the probate process (if there is one), easier both emotionally and financially.  We don’t like to make money correcting mistakes or with families who have been left in a difficult position. If you find yourself in this situation, we’re happy to help but we’d much prefer that you not be there in the first place.

          If you have an online will or were thinking about it, sign up here for our virtual estate planning challenge to think through all of the things you need before you even meet with an attorney.