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Over the course of conversations with many of our estate planning clients, one common theme occurred to us: We spend a significant amount of time with every client explaining the basics of probate and probate assets. As lawyers, we have to make sure our clients are as informed as possible before heading into court. But most of the time, knowing even the basics is helpful.
What is Probate?
Probate is the legal process where the court and beneficiaries settle final claims against the decedent and distribute probate assets. The county in Tennessee where the decedent lived when they died is where the court handles probate. Within that county, a specific court handles probate matters. The name of the court varies slightly from county to county.
Ultimately though, all of the probate courts in Tennessee follow the same Tennessee law, so the process is similar in each court. Every probate will be slightly different because the facts will be different for each decedent. Was there a Will? Was there a Trust? Are any estate recipients minors? Are there any creditors of the estate? There are many variations on what probate can specifically entail.
What Are Probate Assets?
The definition of a “probate asset” is important for our understanding of the probate process. This is because probate only distributes probate assets. In the most basic definition, a probate asset is something that is owned individually by the decedent. However, this definition has quite a few exceptions and additions. It may be easier to define a “probate asset” by focusing on what it is not, or by the “non-probate assets.”
Non-probate assets do not have a legally designated beneficiary. The most common example of this is life insurance. Life insurance usually has a designated beneficiary to whom the money will flow almost immediately upon a person’s death. The probate court does not consider this transfer except to note the amount of the life insurance the recipient receives.
Examples of Non-Probate Assets
One lesser-known example is a payable-on-death (POD) beneficiary for a basic checking or savings account. Most of the time, you can designate a POD beneficiary on the bank accounts you own. This will allow the bank to immediately transfer that account to your beneficiary upon your death, removing the bank account from probate.
Assets that are owned jointly by spouses are also typically non-probate assets. Homes are commonly non-probate assets. A home bought by a married couple will automatically belong to the surviving spouse. A word of caution here if you are a married couple, be sure that both your name and your spouse’s name are on the deed! If the property is only titled in one spouse’s name, this does not apply and the home would be a probate asset.
Contact the Estate Planning Attorneys at Tressler & Associates
Hopefully, this is a helpful explanation of probate and probate assets. Our attorneys would be glad to walk you through the process of discussing what probate would look like for your loved ones and strategize on how to ease that process. Quite a few assets can be removed from your probate estate by simple changes. We would be honored to show you how. For help with planning your estate, contact our estate planning attorney today.
There is a myth in Tennessee about intestacy that I hear often: if you die intestate, your property will naturally be distributed to the right people. By “right people,” they typically mean their family. While the property of an intestate decedent is distributed to your heirs, you cannot end the conversation there. Every state defines “heirs” as it sees fit. The progression of your belongings in Tennessee might not be quite what you would expect.
What Does Intestate Mean?
It’s best that we define a few important terms to begin breaking the Tennessee intestacy myth. When someone dies “testate,” it means that this person passes away with a valid Will. You can probably guess that “intestate” means dying without a valid Will.
How are Assets Distributed?
People usually make incorrect assumptions regarding the split of an estate between spouses and children. Most think that if they pass away intestate, everything will suddenly belong to their spouse. This is simply not true if you have children. If a spouse and no children survive someone who dies intestate, the surviving spouse will inherit everything.
However, if a spouse and at least one child survive someone who dies intestate, the child and the spouse will both inherit some portion of the estate. If there are two surviving children, the spouse and each child will inherit one-third of the estate. If there are more than two surviving children, the spouse will inherit one-third and the children will split the remaining two-thirds of the estate. Bottom line, if your spouse and at least one child survive you, your spouse will not inherit your entire estate unless you create a Will stating so.
Create Your Will with Tressler & Associates Today
To be sure that you distribute your property to the right people, you should have a Will that explicitly outlines your plan for the property. Hopefully, it is now clear that this is important even if you simply want everything to go to your spouse. We would be glad to walk through this process with you.
Planning your estate can help prevent future difficulties for your family. Read more about our estate planning services.
In a recent blog, I discussed the 2015 Federal and Tennessee Estate Taxes. A common follow-up question to that discussion sounds something like, “My assets are nowhere near $5,000,000.00 so why do I need any help with planning my estate?”
The answer is two-fold:
1) TAX LAWS ARE NOT WRITTEN IN STONE!
Our laws change constantly and our government is always in flux. I am thankful that we live in a country where we are represented by the people of our choosing, but that means that “the people of our choosing” change every year. We do not know who will be in power or what agendas will become important in the future. We can only live in 2015. That being said, it is not difficult to see how tax laws affecting Tennesseans could change. It could suddenly become the law that all estates are subject to taxes (thankfully, this is not the current trend).
2) ESTATE PLANNING IS MUCH MORE THAN JUST TAXES.
Estate planning is more than tax law. In fact, I would say that with the majority of our clients, other topics are of greater concern. For example, making sure the correct people have control over assets or determining who will be the decision-maker are more important than estate taxes to many people. Also, privacy or creating a process that will be simple for loved ones are both common goals. There are many reasons that an estate planning attorney can be helpful, whether taxes are of concern or not. Just about everyone can benefit from some estate planning.
To learn more about how we can assist you in Estate Planning or if you have any questions about this or any other legal matters Contact Us Here
In my prior two blogs, I discussed the witness requirements in Tennessee for a traditional, typed out will, and a nuncupative will. Now, let us turn our attention to holographic wills.
Holographic wills are wills that are handwritten. Tennessee does recognize holographic wills that meet the statutory requirements (not all states recognize them). The statute governing the requirements for a holographic will in Tennessee is very short. T.C.A. § 32-1-105 states the following: “No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be provided by two (2) witnesses.” In sum, to have a valid holographic will, the testator must sign the will and all material provisions must be in the handwriting of the testator. When the will is probated, the probate attorney will then have to obtain the sworn statement of two witnesses who can verify that the handwriting is that of the testator. There are two areas where I often see an attempt at a holographic will fail to meet the statutory requirements. First, all material provisions are not in the handwriting of the testator. This happens a lot with “fill in the blank” type of wills. If most of the will is in the testator’s handwriting but a certain material provision is typed, that is not a valid holographic will. Second, the testator didn’t sign the will. Family members will sometimes bring in a handwritten list that their loved one had made stating things like, “I leave my diamond ring to my daughter,” but unless that list is signed it has no chance of being a holographic will.
Based on this blog and the previous two, you can probably see it is not a good idea to try to distribute your assets without the aid of an attorney. I am truly saddened for the family when I see an attempt at a will that is simply not valid in Tennessee. In those situations, the way that the property must be passed under Tennessee law is often obviously not how the deceased person wished it be distributed.
We would love to have a commitment-free conversation with you to discuss how we might be able to serve you in our estate planning practice. Whether you could benefit from a simple Will, powers of attorney, or some type of trust, we are here to walk you through the process.
In a prior post, we discussed the witness requirements in Tennessee for a traditional, typed-out will. Now we will discuss the requirements for nuncupative, also known as oral wills, and holographic wills.
What are Nuncupative Wills?
A nuncupative will is an oral will made by someone in “imminent peril of death;” these wills “shall be valid only if the testator died as a result of the impending peril.” (See T.C.A. § 32-1-106.) This is common among people who find themselves close to passing away without a will or with an outdated will.
When someone has a will they consider outdated, they may try to update it with a nuncupative will. This doesn’t always work because of the court’s inability to trust the dying’s state of mind.
What are the Requirements for a Valid Nuncupative Will?
Now, we know what you’re thinking: “Oral wills are valid?” Yes, under certain circumstances. T.C.A. § 32-1-106 explains that it is only valid if:
The testator makes the declaration before two disinterested witnesses.
The wishes are reduced to writing under the direction of one of the witnesses within thirty days of the declaration.
The will is “submitted for probate within six months after the death of the testator.”
However, even if all of these requirements are met, “a nuncupative will is only valid to dispense of personal property and only valid for personal property not exceeding one thousand dollars in the aggregate.” The only exception to this is when the dollar amount is increased to ten thousand dollars if used by a person in active military service in a time of war.
Should You Use a Nuncupative Will?
As you can guess, it is not a good idea to count on using oral statements to distribute your assets. Usually, they are invalid and your estate would pass according to Tennessee’s laws of intestacy.
Intestacy is the law that applies when someone dies without a will. Nuncupative wills rarely make it through the probate process and if they do, they usually distribute only a small portion of a person’s estate.
Contact Our Estate Planning Attorneys
Plan ahead and have one of our attorneys discuss your estate planning wishes so that we can put them in a binding, legal document and secure your peace of mind about the future. Planning your estate can help prevent future difficulties for your family. Contact us today for help or call us at 615-444-2345.
One of the main issues that I see with a Last Will and Testament people can create online or not in front of an attorney is that they don’t meet the witness requirements of Tennessee law. In Tennessee, if you don’t meet the witness requirements for your will, your will is not valid.
This can mean that all the work you’ve put into this document can become meaningless in the long run. If you were to pass away before fixing this, your estate would fall under the laws of intestacy, the laws that apply to an estate when someone dies without a will. Even if the handwritten will is accurate to your best wishes, the court cannot use or accept its terms. This is definitely something I want you to avoid.
What are Tennessee’s Witness Requirements?
So what are these witness requirements? T.C.A. § 32-1-104 provides that a will, other than a holographic or nuncupative will, must be signed by the testator (the person making the will) and two witnesses. There are specific requirements within the code that spell out what the testator must signify to the witnesses in this process.
T.C.A. § 32-1-103 further clarifies that the witnesses cannot be “interested” persons. This pertains to anyone with an interest in the testator’s estate. This keeps most family members and friends from being testators. Not only must the witnesses and testator sign the will, but they must all do so in the presence of each other. If one signs the will without the other being present, the will cannot be accepted. Tennessee requires strict compliance with these rules. If you do not meet any of these requirements, the will is invalid.
The Tennessee legislature recently amended the witness laws to allow signatures on a specific type of affidavit that is often attached to the will to count as the witness signature requirement. However, this is a very minor exception because the following must be true about that particular will and affidavit:
The affidavit meets the witness requirements listed before.
The will was executed prior to July 1, 2016.
As you can tell, this minor exception does not apply to most wills. This will not apply to any new wills created on July 2, 2016, or afterward.
Follow Tressler & Associates to Make Sure Your Will is Legal
It is important to remember that these requirements apply only to traditional, type-written wills. Stay tuned for more blog posts from Tressler & Associates where we will discuss all of the requirements involved for making a nuncupative or holographic will valid.
The last thing anyone wants is to believe that an estate plan isn’t secure. Sadly, a will that you create on your own can be invalid due to one technical detail that you didn’t anticipate. Should Tressler & Associates, PLLC, have the opportunity to prepare your will, we will take care to ensure that it meets all witness requirements and even provide witnesses for you at the signing.
I recently saw this post on Facebook and I wanted to share it. This is something as attorneys we see too often and I thought it a worthwhile reminder…
“I cannot stress enough, how important it is to have the conversation with your family about your final wishes. Have a will in place, organize your financial documents for your loved ones, write down simple wishes such as items to be given to specific members of the family or just details of your funeral wishes. As times, situations change, keep these documents updated. It’s such an extremely stressful time for everyone and even more so when some of these items are left unsaid. It’s very hard to take emotions out of the situation when there are so many emotional details to attend to after someone’s passing. This has been the hardest past two weeks of my life; last night and today just topped it off… but I’m sure there are more to come. I’ll get through them one step at a time.
Please, I beg you; friends and family – have that difficult conversation. You and your loved ones will be grateful that you did”
We are all procrastinators to some degree. Some of us may put small matters off for a few extra days, like grocery shopping or mowing the lawn, while others go by the old saying, why do today what I can put off till next year. This is fun to joke about; however, when it comes to the legal consequences of procrastination, it can be devastating.
In our law firm we see so many lives changed forever by someone’s procrastination. We hear on a daily basis, “if dad, mom, a spouse, or a business partner, etc., would not have put this off then we would not be in this horrible predicament. It is so true in almost any area of the law. People love to put off making a Last Will and Testament, signing a Power of Attorney, having important business documents drafted, or pursuing a case where someone has legally wronged them.
Legal procrastination can cause family members unbelievable amounts of additional stress and expense in a very challenging time of their lives. It is not uncommon to see people inadvertently left out of an inheritance or see families fighting after a loved one’s death that could have been avoided if it were not for the procrastination of the deceased. Also, we see people forced to get conservatorships and guardianships in the court room – something that may have been avoided by the more timely hiring of an attorney. Almost daily, we see what would be valid legal claims that are barred by the statute of limitations because the individual did not seek an attorney in time. When it comes to washing your car or getting a haircut, please feel free to procrastinate, but for important legal matters please contact an attorney today and take the appropriate legal steps to Secure Your Peace of Mind and protect your family.
Keep in mind…this service can also be taken advantage of by real estate agents, lenders, and other vendors who are all valuable parts of the closing process.
We look forward to securing your peace of mind in new ways!
There are many misconceptions among people regarding estate planning. For example, your spouse with whom you share children does not automatically inherit your entire estate if you pass away. This is an awfully big surprise to get after your partner passes away. Surely, you can see why that is a huge reason in itself to have an estate plan that has all your beneficiaries settled.
What are the Two Types of Beneficiaries?
Another common misunderstanding is in regards to the order of priority for named beneficiaries and the beneficiaries listed in a Will. Let us explain the difference between the two types of beneficiaries.
By “named beneficiary,” we are referring to someone that you explicitly place as a beneficiary on a specific asset. For example, a beneficiary on a life insurance policy or an IRA is a named beneficiary. Whereas, more generically, a beneficiary in a Will is exactly what it sounds like. It is a person named in your Will to inherit a specific asset or assets.
Where Wills Can Go Wrong
So here’s the issue: What happens when you have the named beneficiary listed as one person and the beneficiary in your Will for that same asset is listed as someone else? In short: named beneficiaries trump wills. For example, the named beneficiary you list on your life insurance policy will trump the person you leave your life insurance policy to in your Will.
It’s easy to see why this is incredibly important. You can obtain a false sense of security when you feel your Will is perfect, but your named beneficiaries are not actually accurate. At Tressler & Associates, we want to make sure that your entire estate transfers exactly as you intend and this is an example of a common mistake that we work to prevent in your plan.
Contact the Estate Planning Attorneys at Tressler & Associates
Plan your estate with an experienced attorney so that you can help prevent future difficulties for your family. Contact us or call at 615.444.2345.
