Wills and Estate Planning
Do you have a plan for the future? Is it the right plan for you? Does it fit your needs and your life circumstances? Will it work effectively when you need it? These questions are essential to ask and answer. If you don’t have a workable, sound plan in place, now is the time to act. Elder Law of East Tennessee can help. We take what is often a difficult and confusing process and offer a plan that will work for you and an explanation so that you can understand. We strive to give you as much flexibility as possible while keeping things straightforward and simple to handle.
It is essential for everyone to prepare by establishing an Estate Plan, regardless of financial situation, age, or health. Wills and trusts distribute your assets and pay your debts at your death. The Last Will and Testament or trust can also protect assets for a surviving spouse or disabled child. These legal documents also ensure that your final wishes are carried out in the manner you decide.
What kinds of wills are legal in Tennessee? Tennessee recognizes three kinds of wills: traditional wills which are typewritten, witnessed, properly attested, and notarized; holographic wills which are handwritten wills; and nuncupative wills which are oral wills.
Anyone age 18 or over can make a will so long as he or she is of sound mind. Your will should contain the following basic provisions:
- Names and relationships of your immediate family members;
- Directions to pay taxes and debts;
- Directions about what to do with your personal belongings;
- Directions about what to do with all of your other property, such as land, house, and money or investments;
- Naming a person to be in charge of the estate and carry out your instructions (sometimes referred to as the Personal Representative);
- Naming the guardian of any minor children;
- Listing the powers of your Personal Representative, including the power to sell real estate;
- Provisions for bond, inventory, or accountings by the Personal Representative; and
- An affidavit of attesting witnesses.
Of course, your will can include many other terms, including specific instructions about what to do with special items of furniture, jewelry, artwork, or family heirlooms. Your will can also create life estates in property. Testamentary Trusts can be included in your will to protect a spouse or child.
Importantly, a will is not binding until the death of the Testator (the person making the will). Wills are revocable. Sometimes a will is revoked by operation of law or by an act of the Testator. Marriage and divorce, for example, will revoke a will by law. A Testator may revoke a will by defacing it in the presence of witnesses, among other methods. If someone is named in a will, he or she has only an expectation of receiving property at the death of the Testator. It is not a right. It is only an expectation.
Typewritten wills must be properly drafted and witnessed to be effective. In Tennessee, there must be at least two witnesses to the signing of a will. Both witnesses must be in the presence of the Testator and within the sight and hearing of the Testator and each other. An affidavit of attesting witnesses serves to start probate proceedings easily and quickly without going to the effort of trying to locate witnesses and bring them to court.
You should be aware that a will does not control the passing of property that has a beneficiary or pay on death designation. Assets with pay on death or beneficiary designations or joint owners, such as a bank account or an IRA, will pass according to the contract between the account owner and the financial institution holding the funds. Life insurance, also, typically passes according to a beneficiary designation. It is important that you check your beneficiary designations to be sure they provide for your intention because your Last Will and Testament does not control those assets. Your will does not control the title of real estate that is deeded with a joint owner (not a tenant in common), such as a deed to husband and wife, or a deed reserving a life estate. These types of deeds create ownership that vests immediately upon death. We suggest that you keep your will in a safe place and that you tell your Personal Representative where you keep it.
At Elder Law of East Tennessee we tailor your will to your specific needs. We strive to fully understand your objectives and to offer you options in planning to most effectively accomplish your goals. If you already have a Will, we can review it for you. If changes are needed or wanted, sometimes we can simply do an amendment to your will called a Codicil.