Tennessee Wills, Trusts, and Probate

When thinking about your future and your family's future, a thought that doesn't often cross our mind is estate planning. Despite this oversight, planning for the distribution of your assets is of great importance to your well-being and your family's well-being, regardless of your age or amount of assets. Finding the right estate planning mechanism, whether it is a will or a trust, is a personal matter that should be given much thought and consideration. Additionally, once you decide the estate planning mechanism you would like to create, it is of great importance that you comply with Tennessee law. As such, you should consult a Tennessee estate planning attorney when creating your chosen estate planning mechanism.

Tennessee Wills

Tennessee law allows two ways to create a valid will. Each of these methods has certain requirements in order to create a legally valid will. These requirements include:

1. Non-hand-written will – a non-handwritten will must include the following:
1. Competent person: the testator (will's creator) must be mentally competent and at least 18 years old.
2. Writing: regardless of the form, the will must be in writing.
3. Signature: the will must be signed by the testator or by another person who signs it for him and in the testator's presence.
4. Witnesses – Two or more witnesses must observe the testator physically sign the will or point out and acknowledge his or her signature. A witness can be a beneficiary under the will if at least two other disinterested witnesses observe and sign the will. Otherwise, the witness who is a beneficiary under the will forfeits his benefit under the will by signing.
2. Hand-written will (also known as a "holographic will") – But it must include:
1. Writing: the testator must handwrite all material (significant) provisions
2. Signature: the will must be signed by the testator
3. Witnesses: two witnesses must attest that the writing is in fact the testator's handwriting.
3. Nuncupative will—a will made by someone in imminent peril of death. The maximum value of the personal property these wills can distribute is $1,000. These wills neither change nor revoke existing written wills. A valid nuncupative will requires the following:
1. a) Witnesses—two disinterested individuals must see the testator declare he is leaving this will;
2. b) Writing—one of the witnesses must put the testator's words in writing within 30 days after such declaration;
3. c) Impending and Actual Death—the testator must think he or she is in imminent peril of death and then must in fact eventually die as a result of this peril.
4. d) Probate—the writing must be submitted to probate within 6 months after the testator dies.

Changing a Will in Tennessee

Wills in Tennessee can be changed by either:

1. The creation of a new will that either expressly or in part revokes a prior will
2. A document of revocation that meets all the requirements of a traditional will and expressly revokes the prior will
3. Physically destroying the document
4. Divorce or annulment of marriage

The first option allows you to create a new will that contains provisions either expressly or impliedly. The second option allows you to create a document that expressly revokes the original will. This "document of revocation" must meet all of the requirements of a traditional will. The third option requires the physical destruction of the will by burning, tearing, or otherwise obliterating. The fourth option, divorce or annulment of marriage, results in the revocation of provisions in the original will that benefit the former spouse

If you are considering changing your will, discuss these changes with a Tennessee will attorney.

Tennessee Trusts

A Tennessee trust is another vehicle for individuals to distribute their assets after death. Examples of trusts recognized under Tennessee law include express trusts, charitable trusts, and noncharitable trusts.

A trustee must exercise his duties in good faith and according to the terms of the trust. Additionally, the trustee must exercise a duty of loyalty by acting only in the best interest of the trust's beneficiaries. Creating a trust can be a very arduous process and as such, a Tennessee trust attorney should be consulted when going about creating a trust.

Tennessee Probate

At death, a testator's estate goes through the probate process. If a will is left by the testator, a court will distribute the property according to the testator's wishes in the will. Before doing so, however, the court must find that the will have been duly proved to be the testator's will. If no will is left, the court appoints an executor to distribute the property according to Tennessee's intestate succession law.

In Tennessee, the following people may hold interests by intestate succession (non-exclusive):

1. Spouses
2. Decedent's children, grandchildren, etc.
3. Parents
4. Brothers and Sisters
5. Grandparents
6. Uncles and Aunts

If none of the above people are available to inherit, then the State of Tennessee will take control of the asset. The importance of the probate process warrants the consultation of a Tennessee probate attorney when planning for the distribution of your assets upon death.

Tennessee Statutes

1. Wills
1. Tennesee Statues, Chp. 45, Art. 2, § § 501-517.
Tennessee Statutes, Tit. 32, Chp. 1, §§ 101 – 113
2. Trusts
1. Tennesee Statues, Chp. 45, Art. 2, § § 501-517.
Tennessee Statutes, Tit. 35, Chp. 15, §§ 801 – 817
3. Probate
1. Tennesee Statues, Chp. 45, Art. 2, § § 501-517.
Tennessee Statutes, Tit. 32, Chp. 2, §§ 101 – 111