Wills

SOUTHEAST TENNESSEE LEGAL SERVICES

 

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These matters are addressed below:

What property can be covered by a will?

Why should I make a will?

Do I need an attorney to make a will?

Can a will be changed?

Who is a personal representative?

Do I have to leave something in my will to my children?

Can a beneficiary of a will also be a witness to the signing of the will?

Can a beneficiary of a will also be an executor (personal representative) of the will?

What are the duties of an executor of a will and who should I select?

Where is the best place to keep a will?

When is someone mentally incapacitated to make a will?

What are the requirements for execution of a valid will in Tennessee?

Are handwritten or oral wills valid in Tennessee?

What property can be covered by a will?

All real estate and personal property that you own can be transferred by a will, unless ownership is transferred automatically at your death. Property that is owned as "joint ownership with right of survivorship," or "pay on death" accounts are examples of property transferred automatically at the ownerís death. Likewise, proceeds of life insurance policies payable directly to a named beneficiary are transferred automatically. These types of property pass outside the estate: that is, they can be distributed to the survivors without probating a will.

Why should I make a will?

If you fall into any of the following categories, you need to consider making a will:

bulletYou want all or part of your property to pass to a friend or charity.
bulletYou want one heir out of several to inherit more or less than the others, or you want to disinherit an heir completely.
bulletYou have no immediate family and wish to have one distant relative inherit.
bulletYou wish to leave specific items ( heirlooms , for example) to specific persons.
bulletYou have minor children and wish to name a particular guardian for them.
bulletYou own real estate ,or a business or have substantial financial assets and need an estate plan to save on taxes.

Do I need an attorney to make a will?

It is possible in the state of Tennessee to make a will completely on your own. This is called a holographic will. It must be entirely in your own handwriting and signed and dated by you. Holographic wills need not be notarized or witnessed. There are two disadvantages to a holographic will. It may not be recognized in another state if you move. A holographic will that is submitted to probate must be proved by someone who recognizes your handwriting.

Can a will be changed?

A will may be changed by adding a codicil. The codicil must meet the same requirements as a will to be valid. Never attempt to change a will by striking out some portions and writing in new ones. This may void your will.

Who is a personal representative?

In your will, you should appoint a personal representative to make the distributions of property you desire. The personal representative should be a person over the age of 18 whom you trust to handle your affairs as you would.

Do I have to leave something in my will to my children?

No, a person is not required to leave anything in his or her will to his or her children. The client should specify in the will that he or she is leaving his or her children out and should specifically name which children are to be left out, in order to avoid a will contest.

Can a beneficiary of a will also be a witness to the signing of the will?

Although a beneficiary may witness the will, the beneficiary is barred from taking a legacy under a will unless the will is attested to by two other non-beneficiary witnesses. The beneficiary witness is entitled to as much of the legacy as he or she would have inherited had there been no will.

Can a beneficiary of a will also be an executor (personal representative) of the will?

Tennessee law does not prohibit a beneficiary from being an executor, and, in fact, it is quite common. However, if a dispute arises that poses a conflict of interest between the fiduciary obligation of the executor and the personal interest as a beneficiary, the executor may be forced to resign.

What are the duties of an executor of a will and who should I select?

Generally, the executor must take charge of all assets, pay debts, and account for and make distribution of assets. Unless an executor is also a lawyer, the executor must hire a lawyer to handle all of the details, and to make the required appearances in the court that handles probate administration

An executor cannot, by law, serve if that person is an out Ėof-state resident, unless the person is an adult child, sibling, or parent of the testator.

Any competent adult who is trusted by the testator can be an appropriate choice to be the executor of a will. A spouse or child is often chosen. If the spouse or a child is not appropriate, usually a lawyer is nominated. If the estate is very large, a bank can be nominated (only a full service bank with a trust department can handle these estates).

Where is the best place to keep a will?

It is really up to the individual where he or she keeps his or her will. It is important that the individual choose a safe place where someone else can find the will after his or her death. Someone the individual trusts should know that the will exists and where it is located. Some people keep their wills in safety deposit boxes.

Keep in mind that if the will contains provisions that must be known immediately upon the individualís death, a safety deposit box may not be the most suitable place to keep the will. This is because it may be time consuming for someone whose name is not on the safety deposit box to gain access to it.

When is someone mentally incapacitated to make a will?

Generally, any adult (at least 18 years of age) is able to make a will, unless mentally impaired to the extent that he or she cannot understand the consequences of his or her actions. This does not mean that a person has to have been adjudged incompetent by a court of law. Wills can be challenged on the basis of a lack of testamentary capacity, even in the absence of an adjudication of incompetency.

What are the requirements for execution of a valid will in Tennessee?

In order to be valid in Tennessee, a will

bullet must be in writing;
bullet must be signed (permissible substitute is testatorís mark or someone else signing for the testator at the testatorís direction); and
bullet must be attested to by two or more witnesses in the testatorís presence.

Are handwritten or oral wills valid in Tennessee?

A holographic will (one that is completely in the handwriting of the testator) is not given special treatment in Tennessee. Any will, whether entirely typewritten, partially in the testatorís handwriting, or entirely in the testatorís handwriting, can be valid as long as it is signed by the testator and two witnesses.

Oral (nuncupative) wills may be recognized in Tennessee, if certain statutory requirements are met, and if the probate court in its discretion allow it.

Certainly, a nuncupative will is not something that is recommended.  Even if it is allowed by the probate court, it is likely to be vague and incomplete.

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