Estates

SOUTHEAST TENNESSEE LEGAL SERVICES

 

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What if I don't make a will?

If you do not have a will, your property will pass to those persons who are considered your heirs under the laws of Tennessee. This is called intestate succession. In this case, the probate court will appoint an administrator to distribute your property.

Who are my heirs?

Tennessee laws protect the immediate family. After debts and expenses are paid out of your estate, the property subject to intestate succession will be distributed as follows:

bulletTo your spouse and your children.
bulletIf you have no children, your spouse will inherit everything.
bulletIf your spouse dies before you, your children or their descendants take everything. Descendants share their deceased parentís portion equally.
bulletIf you leave neither spouse nor children, your parents inherit in equal parts.
bulletIf your parents have also died before you, your brothers and sisters, or their children, will take your estate.

If you die leaving no spouse, children, parents, brothers or sisters, your estate will pass to more distant relatives. Only if there are no relatives will your estate pass to the state.

What is my share of my spouseís estate if I elect to take against the will of my deceased spouse?

In general, a surviving spouse dissatisfied with his or her share under the will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testatorís entire estate. The surviving spouse is entitled to 10% percent of the net estate if married less than three years; 20% if married three years but less than six years; 30% if married between six and nine years; and 40% if married more than nine years. The surviving spouse must file with the probate court a written renunciation of the will within nine months after the admission of the will to probate. (This time period may be extended in certain circumstances.)

Whether to elect to take against a will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.

Is there a simple way to administer an estate with minimal assets?

If a decedentís personal estate, including the value of all property passing either by intestacy or by will, is $25,000 or less, and if there is no estate owned solely by the decedent, the estate can be settled by the use of a small estate affidavit.

A person or corporation who is indebted to the decedent or holds the decedentís personal property, controls the right of access to the decedentís safe deposit box, or is acting as a registrar or transfer agent of any evidence of interest, indebtedness, property or right, (for example, a bank) who is furnished with this affidavit must turn over the money owed or the personal property being held or grant access to the safe deposit box to the persons specified in the affidavit. The person or corporation turning over the money or personal property is then released from any liability, as if the person or corporation had turned over the money or personal property to the representative of an estate.

A small estate affidavit can be used whether or not there is a will. The statute does not state who the affiant must be; presumably, it can be anyone with knowledge of the estate and heirs and legatees. The affiant does not have to be a Tennessee resident.

The assets are distributed according to the statute. The affiant is required to indemnify and hold harmless any creditor or decedentís heir, or any other person relying on the affidavit, who sustains a loss because of the reliance.

The Secretary of State has a corresponding form for the transfer of the title to the decedentís automobile through the use of a small estate affidavit.

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