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.
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?
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.
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.
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!
Many people think that if they are married, their spouse will automatically inherit everything when they pass and so they don’t need a will. While there are some situations where a spouse does inherit everything, it is not the default under Tennessee law. In Tennessee, if you are married and have children, your spouse will share your probate estate with your children. I call this the S.A.K.S. method (Spouse and Kids Share). In other words, your spouse does not inherit everything automatically.
If you die without a will, Tennessee law dictates that the spouse and children split the estate.
However, I believe that everyone should create their own plan for distributing their assets after death, even if the state has an understandable default on how to do this. Here’s why:
Having a Will can make it easier for your family to go through probate.
Having a Last Will and Testament can be an important way to reduce any burden on your family after your death. In your Will, you decide not only who will inherit your estate but also key decisions like who will serve as Personal Representative (also known as the Executor) and whether you want to require or waive documents that are required by statutes. Having a Will is your chance to have a say in the probate of your estate before you die. The process can be much less complicated for your beneficiaries as well because you may decide to be even more specific about some of the more difficult decisions that need to be made.
It is much easier on your family if you have an estate plan in place. A last will and testament will provide instructions on how to designate and divide assets between family members and friends. If you die intestate (without a will), then the state’s inheritance laws will determine who gets what.
Preparing an estate plan will cover situations that may arise after your passing
Have you considered what might happen if your spouse remarries? Are you aware that a future spouse can take an interest in a portion of your estate? Would you want part of your assets to go to a new spouse or to any children that they may have with that spouse? Do you have family or children that should benefit instead? There are many other factors to consider, but it’s important to discuss these things with your attorney when you create your estate plan.
A Will provides security for your spouse
If you are more concerned about your spouse inheriting from you than your children, you can plan for that too! The general rule in Tennessee is that the spouse would get no less than a third of the estate.
For example, if you are splitting the estate with two or more children, the spouse would get a third. If there is only one child, the spouse would get half.
What if you want to provide more? With a Will, you can designate that your spouse gets everything or only leave certain things to your children. Many spouses write “I love you” wills, where they inherit first from each other, and then their children only inherit when the second parent dies.
Use a Will to protect spousal inheritance from changes in family dynamics
Another consideration in making a Will is your family dynamic. Do you have children from different relationships throughout your life? Do you have concerns about how your children from those relationships will get along with your current spouse when it comes to your estate? It is important to consider how you want inheritances to be split. Your Will can dictate how your assets will be handled! You can also designate your preference for the guardian of any minor children in the event that both you and the other parent die.
Additionally, a Will provides provisions such as the appropriate age at which your children should take over responsibility for managing any inheritance. One primary concern many parents have is whether young adults will be mature enough to make sound judgments concerning any money they inherit. Your Will can establish a certain age at which young adults gain control of their inheritance, to ensure that it isn’t squandered when you would prefer it be used towards education or sound investments.
In short, your Last Will and Testament should be drafted so that your wishes regarding your family are honored.
A Will can safeguard your beneficiaries if they become disabled
Are any of your assets expected to go to a loved one who has a chronic medical condition? If so, you’ll want to consider that an inheritance could disqualify them from any means-tested government benefits that they may receive or be entitled to, which could be devastating if they are counting on that benefit. The most common examples of this are Supplemental Security Income (SSI) and TennCare (Medicaid). You’ll want to have a contingency plan in your estate plan to make sure that their benefits are secure and not at risk of being cut off due to an inheritance. You don’t want their government assistance to decrease just because you died! You definitely need a plan for that. Make sure to work with a qualified estate planning attorney so you can refrain from making errors with your family’s benefits.
If you want control over who can access your digital assets, you must make a Will
Many digital assets are governed by terms and conditions which are unlikely to specify who will take over your accounts when you die. Some providers, such as Facebook, permit you to designate someone as a “legacy contact.” However, not all companies are robust enough to provide this type of service. A Will protects your digital assets from falling into the wrong hands or being lost in digital space with no one able to claim them. Check out our blog post about how to create or change your Facebook “legacy contact” here.
These are just a few of the things that you’ll want to consider when making an estate plan. I want to encourage you to have a long discussion with your spouse about how your assets should be split when one of you dies. There shouldn’t be any surprises! I cannot stress the importance of knowing each other’s values and putting them in writing. It is crucial to have the outcome you desire. A failure to plan can end up in expensive court litigation. This is why we encourage everyone to speak with an experienced estate planning attorney about how they and their spouse can protect each other through proactive planning.
Are you ready to make your Will? Schedule a free initial call and make your plan with the Team at GALS!
One concern I frequently hear is a worry that the government will take assets from a loved one or take assets from an estate instead of family members inheriting it. These are valid concerns because there are specific instances where this can happen, but as a general rule, the government DOES NOT take assets unless they have a legal reason for doing so.
The State of Tennessee will not take your assets
There are a few instances where the government will take your assets if you die without a will. For example, if someone received Medicaid (TennCare) to pay for long-term care, if they owed back taxes, or if no family members can be located. But, as a general rule, the State of Tennessee is not going to take your assets.
Tennessee will find your closest heirs
The State of Tennessee has a statute that lays out how your assets will pass if you die without a will. Your assets will pass to what we call your heirs at law. Those are really the people that you probably think of as your closest relatives: your spouse, your children, your grandchildren, your parents, your siblings, your nieces and nephews, your cousins, and farther out. But it’s the close relatives that the state will seek out.
Generally, the government is going to look for anyone related to you before they get any money. I hope that sharing this information with you has given you a sense of relief if you were told inaccurate information elsewhere.
If you have other questions about your estate or that of a loved one, click here to schedule a call with us.
Is there someone you have considered leaving out of your Will? There are plenty of reasons for wanting to exclude someone, a group of people, or everyone you know from inheriting from you. Maybe you’ve had a falling out, maybe they haven’t kept in touch like you hoped, or maybe you just like animals better.
People who know me are probably tired of hearing me say it, but I believe that no one is entitled to an inheritance. Whatever you want to do with your earthly possessions is entirely up to you. There’s no wrong decision- whether you want to leave everything to your children, your church, or your dog. It’s just a personal decision, like your hairstyle (although a bit more permanent decision).
If you don’t have a Will, the law in Tennessee leaves your estate to your closest relatives. By making a Will, you can leave your assets to anyone you like. The only exception to this is that you cannot disinherit your spouse or minor children.
If you don’t want your spouse or kids to inherit because you don’t like them, I hope you will consider counseling. However, that’s another personal decision. So is divorce, which is the only way to remove your spouse’s right to inherit from you. If you don’t like your kids, you have to wait until they turn eighteen to disinherit them.
If you want to disinherit someone, I encourage you to make it clear in your Will. If your Will goes through the probate process, the Court will look at what your intentions were. Leaving a nominal sum like $10 means that the person is not truly disinherited- they inherited $10. We like to acknowledge that the person has been disinherited and, depending on the situation, a brief statement about why. We are kind but firm to reduce any confusion or potential for a contest in the future.
And remember, relationships change and so do Wills.