At Harpeth Estate Law, we believe informed clients make the best decisions about their estate plans. That's why we want to break down complex terms and clarify confusing principles so that you make the right choices for your estate, too. Here are some of the most frequently asked questions we get when new clients come to our office. If you are ready to start designing your own estate plan to secure your legacy and your financial future, contact our office to schedule a Life and Legacy Planning Session or a 15 minute consultation.
What is estate planning?
Estate planning is the process where you arrange how you want your assets to be managed and distributed upon your death. An estate plan also names a guardian for minor children. If you have no children, limited assets, limited beneficiaries, and limited instructions on how to distribute your assets to the beneficiaries, planning can be pretty straightforward. On the other hand, the more assets, the more beneficiaries, and the more instructions you have may require an estate plan that is more complex.
What goes into an estate plan in Tennessee?
An estate plan will include the documents that accommodate your specific needs. It may involve some or all of the following:
- Last will and testament
- Living trust
- Irrevocable trusts (e.g., life insurance trusts, gift trusts, special needs trust, charitable trust)
- Conservatorship
- Guardianships
- Asset protection from divorce, creditors, others
- Health care directives, including medical powers of attorney, living wills, health care proxy, do not resuscitate (DNR) or do not intubate (DNI) orders
- Succession plan for business
- Charitable planning
What is probate?
Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. In Tennessee, it is overseen by a county probate court.
What happens if I die without a will in Tennessee?
Dying without a will means you die intestate. Your assets and belongings will get passed to your heirs according to your state's intestacy laws found in Title 31, Chapter 2 of the Tennessee Annotated Code. If you have no heirs, the estate will be transferred to the State of Tennessee.
What happens to my will if I move to a new state?
In rare cases, the differences in state laws could make your will invalid. For example, if you moved to a state that views marital property differently from your former state of residence, the change in laws could result in complications. If the new state has different requirements to execute a will, the new state might not recognize in probate court. It is wise to revisit your will with an attorney in your new state after moving.
Do I need a lawyer to write my will?
While you do not need a lawyer to write a will, executing a will without a lawyer is risky. A last will and testament created using an online form does not take into account the different aspects of your estate and your family situation. These plug-and-chug forms are not personalized to each individual, and will likely not protect your family and your assets when it goes to probate court. An experienced lawyer knows how to craft a plan that works for your unique situation and family, and protects the legacy you leave behind.
Can you write a will if you have Alzheimer's or dementia?
People need to have testamentary capacity to make a valid will. This often requires an understanding of the property being devised in the will, who is going to receive it, and the purpose and function of a will. People with Alzheimer's or dementia may struggle with testamentary capacity. The best way to make sure they have a will in place is to hire a lawyer to help.
Do I need a Will if I have no children?
If you die without a will, your estate will pass to others through Tennessee's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to Tennessee's intestacy laws, then the state may acquire the property. So, even if you do not have children, you still need a will if you do not want the state to make decisions for you about who gets what from your estate.
Keep in mind you do not have to create a will to benefit only family. A will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial well being of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.
Does my will automatically change if I divorce?
Sort of. Tenn. Code Ann. § 32-1-202 states that "[i]f after executing a will the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise." So, while the will itself doesn't change, a divorce will revoke the former spouse's ability to inherit, depending on the divorce decree. It is crucial to update your will after getting a divorce so that your most recent wishes are reflected in it.
Does my will automatically change if I have a child?
Again, sort of. The answer to this question depends on the specific language in your will. If your will specifies an action that will happen to unnamed offspring (for example: “All of my property equally to my children”), then your newly born child would stand to inherit according to your will. If the language of your will does not contain verbiage that would cover a child born after the making of your will, then Tennessee law says that that child shall inherit according to Tennessee's intestate laws. You should always revisit your will after having a child to make sure your child or children inherit according to your wishes.
What is the difference between a will and a living will?
A will – also called a last will and testament – comes into effect when a person dies and directs the executor on how to care for minor children and how to transfer the property in the estate. A living will, on the other hand, comes into effect when a person is alive but incapacitated – it tells others what that person's preferences are regarding their healthcare.
What is a trust?
A trust is a fiduciary arrangement that allows a third party, a trustee, to hold assets for the benefit of someone else, called the beneficiary. The trustee must follow the instructions set out by the trust. There are several different types of trusts, each with specific purposes. The assets set aside in the trust do not go through probate, simplifying and expediting transferring the assets out of the estate.
Can I have both a will and a trust in Tennessee?
Absolutely. Many trusts are set up while a person is living to work with a will to carefully plan how assets are handled upon that person's death. Other trusts are testamentary trusts, and are actually created in the decedent's will.
Are trusts only for rich people in Tennessee with lots of assets?
No. Different trusts are set up for different purposes, and have different advantages for the beneficiary. They are utilized by people of varying means in order to make sure their estate is handled in the way they desire.
What happens to jointly owned property when one spouse dies?
When spouses jointly own property and then one spouse passes away, the property is automatically passed to the surviving spouse. An example would be the marital home owned by both spouses.
What is a guardian?
A guardian is a person who is responsible for someone else's well-being. People often appoint a guardian for their underage children in their will or for their adult children with special needs. These legal guardians care for can make legal decisions on behalf of their charges, much like a parent.
How can I designate a guardian for my children?
Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions. If you do not appoint a legal guardian via a will, the court will appoint one upon your death. It is critical to make sure you designate a guardian in your will in order to ensure your children are cared for by a guardian of your choosing.
How can we make sure our special needs child is cared for after we die?
A common way to ensure a special needs child continues to receive the care they need is to appoint a guardian for them and to create a trust fund in their name. Special needs child trusts are specific for this purpose.
How can I make sure my pet is cared for after I die?
A common way to care for pets after their owner passes away is to state in the will who is to care for the animal and then create a testamentary trust for the benefit of the pet.
When do I need a power of attorney in Tennessee?
A power of attorney is essential for people who are unable to make important medical or financial decisions on their own behalf, usually because they are incapacitated or suffering from a medical condition. There are five types of powers of attorney, each with their own purpose:
- Durable power of attorney
- Medical power of attorney
- General power of attorney
- Limited (special) power of attorney
- Springing power of attorney
Contact Harpeth Estate Law Today
Planning for your family and your legacy after you are gone can be a daunting task. It's often something we put off, not wanting to think about what would happen if something ever happened to us, but the reality is, estate planning can be the most important thing we do in life. Harpeth Estate Law is here to guide you through the process of naming guardians for your children and organizing your estate so that your assets pass smoothly to your beneficiaries. If you are ready to start securing your legacy, set up a Life and Legacy Planning session with our attorney today. Or, if you want to hear more about our process or have a few questions, set up a 15 minute consultation.