Creating a last will and testament is one of the most important steps you can take as an adult in Tennessee to protect your loved ones. Before you make your will, take the time to understand Tennessee laws and the steps to take to ensure your will is valid.
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What If I Die Without a Will in Tennessee?
When a person dies and has a will, the will dictates how to distribute their real estate and remaining assets. If a decedent passes without a will, they die “intestate,” and Tennessee laws determine who will inherit their assets.
If there is a surviving spouse or children, they inherit the estate. If not, next of kin such as parents, siblings, or grandparents inherit the assets. So, if you have a partner but are unmarried, or have stepchildren that you don’t adopt, they are left out of your estate. Because of this, it is essential to create a will so that you have control over how to distribute your assets.
What Does a Will Do?
A simple will is a legal document instructing how you want your estate handled after your death. Some common provisions to include in your will are the following:
- Naming a personal representative or executor. A personal representative or executor is responsible for locating your assets, submitting your will to the probate court, and following the instructions in your will.
- Identifying and giving away personal property and real estate according to your wishes
- Naming beneficiaries, the loved ones and family members who will inherit from you
- Making charitable donations
- Naming guardians for minor children
- Naming caregivers for pets and giving money to care for them
Additionally, a Tennessee will streamlines the probate process, saving your loved ones time and money. You make the decisions about your estate, so the probate court doesn’t have to do it.
What Doesn’t a Will Do?
A will handles real estate and personal property. However, some assets do not transfer through a will. These are called non-probate assets, and they transfer according to the terms of their own documents. These include:
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts
- Life insurance payments (to beneficiaries other than to the estate itself)
Therefore, you should make a list of all your transfer-on-death accounts and policies. Check each one to make sure they have the correct beneficiary designations. And name a backup beneficiary in case your primary beneficiary dies before you. Any assets without a beneficiary go to your estate for the court to distribute during the probate proceeding.
Who Can Make a Will in Tennessee?
Tennessee has certain laws about who can make a will. You can make a will in Tennessee if you meet the following qualifications:
- Age: You are 18 years or older
- Sound Mind: You have a sound mind. Being of sound mind means the person making the will (called the testator) understands what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.
A testator must have a sound mind when they make and sign the will. Tennessee residents with concerns about their mental capacity should consult an estate planning attorney for legal advice and assistance.
Does Tennessee Have a Statutory Will?
No. Tennessee does not have a statutory will or state form you must use to create your will. You can either create your own will customized to your needs or hire an estate planning attorney. Many choose to make their will with online resources such as FindLaw Legal Forms and Services that help draft a will conforming to Tennessee law.
What Types of Wills Does Tennessee Accept?
Most wills are typed or printed and signed by the testator. However, it is important to understand state law about other types of wills and if they are valid in Tennessee:
- Handwritten Will: Also called a holographic will, this is a will that is handwritten by the testator but not witnessed when signed. Tennessee permits holographic wills only if the signature and the material provisions of the will are in the testator’s handwriting and two witnesses can prove the signature and handwriting belongs to the testator.
- Oral Will: Also called a nuncupative will, this is a spoken declaration. It is valid in Tennessee if the testator died from “impending peril” and the testator stated their intent for it to be a will before two disinterested witnesses. The witnesses put the declaration in writing within 30 days and submit it to probate within six months of the testator’s death. Note, however, this type of will can only dispose of personal property that is not worth more than $1,000 total unless the testator is on active military duty in a time of war, and then the value can be no more than $10,000.
- Electronic Will: An electronic will refers to a will that is either signed, witnessed, or notarized through electronic means. Tennessee does not recognize electronic wills at this time.
Because these alternative methods of will execution are easier to challenge on the grounds of fraud or undue influence, it is best to create a typed, signed, and witnessed will if possible.
Can I Make My Own Will in Tennessee?
Yes. You can make your own will in Tennessee. If you know what property you own and how you want to give it away, you are ready to make your will. You are not required to use an attorney to draft your will. However, you must follow state-specific guidelines for signing your will to make it a valid legal document in Tennessee. You may consider using a legal services company, such as FindLaw Legal Forms and Services, to tailor a will to your needs that follow Tennessee state law.
How Do I Make My Will Valid in Tennessee?
There are several essential procedures to follow to make a valid Tennessee will.
- Signature: You must sign your will or direct someone else to sign for you in your presence.
- Witnesses: Two witnesses must be present when the testator signs the will. Anyone competent as a witness in the state can witness a will (any adult who is not mentally incompetent). The witnesses must sign in the testator’s presence and in each other’s presence. An interested witness is one who may benefit under the will. A will is not invalid if you use an interested witness, but the interested witness will forfeit that benefit unless two other disinterested witnesses attest to your will. So, it is best to use disinterested witnesses when possible.
- Notary: Tennessee does not require a notary to authenticate your signature.
- Self-Proving Affidavit: Tennessee allows you the option to use a self-proving affidavit. In this affidavit, your witnesses testify before a notary public that you signed your will. Your witnesses can sign the self-proving affidavit when you sign your will or at any time after the fact. This affidavit means that as long as no one is contesting the will, the witnesses do not have to testify in probate court.
Can I Disinherit My Spouse in Tennessee?
There is no requirement that you leave your spouse anything in your will. But, if you do not leave a gift of a qualifying amount to your spouse, they have a right of election against your probate estate. The elective share is between 10 percent and 40 percent, depending on the length of the marriage. The surviving spouse has no right of election against non-probate assets. And if the surviving spouse signed a pre-nuptial or post-nuptial agreement waiving their right of election, they cannot make claims against your estate.
Can I Disinherit My Children in Tennessee?
Parents can disinherit their children in Tennessee. However, if you intend to do so, it is best to state in your will that you are disinheriting them. Otherwise, your child could challenge the will and convince the court you simply forgot to include them.
What Estate Planning Documents Should I Have in Tennessee?
A will is a critical component of your estate plan. But consider creating other vital legal documents for a complete estate plan.
- Power of Attorney. This document allows you to appoint someone you trust to handle your financial matters. You may choose to do this when you can no longer manage your financial affairs. Or you may do so for convenience, for example, if you travel frequently and need help managing certain financial transactions when you are away. You decide what powers to give and when your power of attorney begins and ends.
- Health Care Directive. In a health care directive or living will you can name someone to get your medical information and make health care decisions for you when you are unable. You can also specify your wishes for end-of-life care and life-sustaining treatments. It is essential to make these decisions, so the burden does not have to fall on your loved ones.
Fortunately, making a valid will and creating other Tennessee estate planning documents is easy with online estate planning templates.