By William E. Duffey, Jr.
If you are like most people, you want to have some control over who will take possession of your property when you die.
In order to direct who gets your assets upon your demise, the most frequently used document is a will. The only requirement in Tennessee to make a will is that the person be of sound mind and age 18 years or older since the will is considered a legal document. The state accepts oral wills under certain conditions and holographic wills (written by hand). In Tennessee, two witnesses must sign the will to make it valid. These two witnesses must sign the will in the presence of each other and the testator.
What Happens When You’re Gone
When a person dies, their assets must be dispersed and ownership transferred to the new heirs. Debts, if any owed by the decedent, must be paid before any of the decedent’s property can be distributed to the heirs. The legal term for this process is called probate. Probate must go through the courts to ensure the decedent’s wishes as outlined in their will are carried out.
The first question I get asked by many people is “Are you required to go through probate?” and the answer is yes. In some cases, it is possible to avoid probate because of estate planning or due to the fact that not all assets of the deceased become part of the deceased’s estate. Generally speaking, assets the deceased owned in their name alone are required to go through the probate process and are considered part of the probate estate. Some of the most common assets that are not considered part of the probate estate are jointly held property, such as homes and joint back accounts, which, because of the right of survivorship of spouses, become the surviving spouse’s property automatically. Also, proceeds of a life insurance policy or annuity (or even a retirement account if a beneficiary is named) go directly to the beneficiary and are not considered to be part of the estate.
Typically, in Tennessee, probate can take anywhere from six months to a year. Probate of an estate can take longer if there are any unusual assets or if any of the heirs dispute the terms or validity of the will. One exception to the normal probate time-period is if the estate is small and has a value of $50,000 or less, then a small estate affidavit can be filed 45 days after the death of the property owner.
What If You Don’t Have a Will?
The next obvious question is what happens to a person’s estate if they do not have a will or the will cannot be found. When a person dies without a will, it is called dying intestate. Under state law, assets that are not being distributed to designated beneficiaries will pass to the deceased’s closest relative. Many times, the decedent will have been married and have children. In that case, the assets will be divided between their spouse and children equally, with the spouse getting no less than one third of the estate. If the decadent has no spouse or children but has living parents and siblings, the assets would be distributed equally between the parents and siblings. Usually, the decedent’s grandchildren will receive a share if their parents (the decedent’s children) have died.
There are many practical reasons for having a will, not the least of which is to keep disputes from arising among the heirs of the decedent’s estate. A will reduces the opportunity for arguments over who gets what at a time when families are grieving the loss of a loved one.
In summary, you cannot guarantee that your wishes will be carried out in regard to the disposition of your property after your death, but if you do not have a will, the state will decide for you.
William E. Duffey, Jr. is a Knoxville native, attorney, and graduate of the University of Tennessee and University of Arkansas School of Law. He specializes in estate matters, family law, and construction law.