A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Tennessee wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Tennessee , or advance directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the person who passed away) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Tennessee last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a Tennessee last will and testament can be effectuated, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
Once a Tennessee will is proven, the executor can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
Tennessee offers a simplified probate process for estates worth less than $25,000, which may begin 45 days after the decedent’s death, although that period may be waived in certain circumstances.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Tennessee in the absence of a will, a surviving spouse inherits the entire estate unless the decedent and surviving spouse also share descendants, in which case the spouse and descendants equally share (but the spouse’s share cannot be less than one-third).
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions in Tennessee include the following:
- Property owned in joint tenancy with right of survivorship
- One-half of community property passes to the surviving spouse
- Share to surviving spouse if omitted from will, unless it appears from either the will or other evidence that omission was intentional
- Share to surviving child if omitted from the will, unless it appears from either the will or other evidence that omission was intentional
Form a Last Will in Tennessee
The basic requirements for a Tennessee last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A Tennessee will must be signed by at least two witnesses, who should not also be beneficiaries in the will, in the presence of the testator and of each other.
- Writing: A Tennessee will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in Tennessee
Tennessee also recognizes the following types of wills:
- Holographic (handwritten) wills: signature and material provisions must be in the handwriting of the testator and handwriting must be proven by two witnesses.
- Nuncupative (oral) wills: must meet several requirements under Tennessee law, including that the will may be made only by a person in imminent peril of death and the person dies as a result of that peril.
Changing a Tennessee Last Will and Testament
A Tennessee will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Tennessee Last Will and Testament
The revocation of a Tennessee will can be accomplished in the following ways:
- By executing a subsequent will;
- By executing a document of revocation in the same manner required of holographic wills;
- By the will’s being “burned, torn, canceled, obliterated, or destroyed” by either the testator or by someone else at his direction in his presence; or
- By the testator's subsequent marriage or birth of a child.
Note that in Tennessee, if the testator gets divorced or has his marriage annulled after executing a will, certain provisions in favor of the ex-spouse are revoked.
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