Wills in Tennessee

Prepared as a public service by the Community Relations Committee of the Nashville Bar Association.
This pamphlet was made possible by a generous grant from the Kroger Company.

The Nashville Bar Association, as a public service, through its Community Relations Committee, has prepared this pamphlet answering basic questions about wills.

As you read this pamphlet keep in mind that each person has unique individual needs that need to be addressed. This pamphlet is intended to answer commonly asked questions and is not a substitute for a consultation with an attorney.

WHAT IS A WILL?

A will is a signed document by which a person directs what is to be done with their property after their death.

WHO SHOULD HAVE A WILL?

Everyone should have a will. People who have minor children or own property have the greatest need.

WHAT HAPPENS IF YOU DON’T HAVE A WILL?

If you don’t have a will, the Tennessee statute of Descent and Distribution directs who receives your property and in what amounts, regardless of your wishes. If you are married without children your estate passes entirely to your surviving spouse; however, if you have children they receive a portion of your estate. If you are unmarried, without children, and your parents survive you your estate passes to them. Eventually, if no family member is found, the estate passes to the State of Tennessee.

WHO CAN MAKE A WILL?

Any person who is of sound mind and is eighteen (18) years of age or older may make a Will in Tennessee.

WHAT SHOULD BE INCLUDED IN A WILL?

The Will should address issues important to you, including:

a.The appointment of a Personal Representative, (Executor or Executrix), to oversee the execution of the estate.

b.The disposition of personal and real property, including the establishment of a testamentary trust, specific gifts, and the remainder. Simply, who gets what and when.

c.The appointment of a guardian for minor or incompetent children.

d.Other issues unique to the individual including, operation of a business and estate taxes to name a few.

 

HOW LONG IS A WILL VALID?

A will is valid until you revoke it, generally by physical destruction, burning or tearing it up, or by signing a superseding will or a written revocation. However, if you get divorced after signing a will, the law in Tennessee considers the will partially revoked as to that spouse. If you have a will, then get married and have children the will is revoked. If you are married your spouse has rights in your estate regardless of what you provide for in your will.

 

CAN THE WILL BE CHANGED?

Your will does not take effect until you die, so it can be changed any time during your life as long as you are mentally competent. Traditionally wills were changed by an amending instrument called a "codicil", but with the development of word processing, it is usually better and just as easy to make an entirely new will.

HOW DO I GET A WILL?

You can write your own will in Tennessee, but the signature and the will’s important provisions must be in the handwriting of the person signing the will. This is known as a "Holographic Will". The handwriting must be proved by two (2) witnesses.

Normally people do not draft their own wills. A person who drafts a will must be familiar with the law in order to avoid the many pitfalls and to comply with the legal formalities necessary to assure the will’s validity. Only practicing attorneys are qualified to prepare and supervise the signing of your will.

 

WHAT ARE THE ADVANTAGES OF HAVING A WILL?

• You get to choose who receives your property and in what amounts.
• You select the person who handles the wrapping up of your affairs. (Personal Representative)
• You select who will be the guardian of your minor children.
• You may provide for a trust for the support and education of your children or defer distribution of assets to children until they reach a more mature age.
• You can reduce the expenses of administration of your estate.

WILL SUBSTITUTES?

A. JOINT OWNERSHIP

In most cases, joint ownership is not an acceptable substitute for a will. Joint ownership between husband an wife may result in excessive estate taxes. Joint ownership between a parent and child may foster disputes between family members, subject the property to creditor’s claims, and unexpected or unnecessary gift taxes.

B. LIVING TRUSTS

A funded revocable trust, "living trust", can be a valuable and important part of an estate plan for many people, but it does not eliminate the need for a will. If you have a living trust you still need a will to distribute those assets that have not or cannot be placed in the trust. Generally when a living trust is put in place a "pour over will" is executed along with the trust documents to act as a catch all for any property remaining outside of the trust.

ADVANCED DIRECTIVES

In addition to a will each person should consider having a "Living Will" and a "Durable Power of Attorney for Health Care". These documents do not distribute property but, are sets of general instructions that tell health care workers, friends, and family about your health care choices when you can’t.

The Living Will is looked to for instructions when you cannot speak for yourself and you are in a terminal condition. The Durable Power of Attorney for Health Care is used when you cannot speak for yourself but you have a chance of recovery.

DOCUMENT DRAFTING

A practicing attorney in Tennessee can draft and execute a Will, Living Will, a Durable Power of Attorney for Health Care, Living Trust and/or any other documents that may be needed for your estate plan.

SUGGESTIONS

Planning your final affairs is a very personal and individual matter. You should decide for yourself the general goals you want to accomplish, then consult your attorney and any other advisor, banker, accountant, insurance agent, or financial planner to help you properly accomplish your goals.

If you take these five steps you will save time and assure a sound result:

1. Inventory Your Assets

List in reasonable detail all of your real and personal property, insurance policies, annuities, and retirement plans, with your best assessment of their values.

2. Inventory Your Liabilities

List all debts and obligations, including principal amounts, creditors, and other essential terms.

3. Family Members and Other Important People

List all persons who might be an appropriate personal representative, guardian, trustee, and any others whom you want to be notified of your death.

4. Decide What You Want to Accomplish

Determine your objectives and who you wish to receive your property.

5. Contact an Attorney

After you have considered your plan meet with an attorney and your other advisors to work out the details and prepare the necessary documents.

For assistance in finding a lawyer for a will or any other legal matter, you may want to contact the Nashville Bar Association Lawyer Referral Service.