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Do I Need a Will?

Do I Need a Will?

Intestate Succession * as of 2018 in TN

If you do not have a Will, your property will pass by intestate succession. Tennessee law as of January 2018 provides for intestate succession in the following manner:

If you die with:This is what happens:
Spouse but no childrenSpouse inherits entire intestate estate
Spouse and childrenSpouse and children equally share the intestate estate, but the spouse’s share may not be less than 1/3 of the intestate estate
Children but no spouseChildren equally share the intestate estate; issue of deceased children take by representation
Parents but no spouse or childrenParents equally share the intestate estate
Siblings but no parents, spouse, or childrenSiblings equally share the intestate estate; issue of deceased siblings take by representation
Nieces/nephews, but no siblings, spouse, or childrenIssue of siblings (nieces/nephews) take by representation

*It is important to note that in the absence of a Will, where both a spouse and children survive the decedent, the surviving spouse and children share the decedent’s estate.

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What Happens to Property That Passes Without a Will?

The following assets will pass to the designated beneficiary named on an account or the surviving co-owner of the property regardless of whether the decedent has a Will unless the decedent’s Estate is the named beneficiary:

  • Property transferred to a revocable trust;
  • Life insurance proceeds;
  • Funds in an IRA, 401(k), or other retirement account;
  • Securities held in a transfer-on-death account;
  • Payable-on-death bank accounts; or
  • Property owned with someone else in joint tenancy or tenancy by the entirety, such as joint bank accounts and jointly owned real property.

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What is Spousal Share?

A surviving spouse may elect against taking an intestate share of decedent’s estate or elect against the Will and would be entitled to the following:

If decedent and surviving spouse were married to each other:The elective-share percentage is:
Less than 3 years10% of the net estate
3 years but less than 6 years20% of the net estate
6 years but less than 9 years30% of the net estate
9 years or more40% of the net estate

*Years of marriage do not have to be consecutive for calculating a spousal elective-share, but may be separated by divorce.

*The net estate is based on a complicated calculation of inclusion and exclusion of assets and liabilities, but a simplified rule is the value of the estate after debts, expenses, and family allowances (homestead, year’s support, and exempt personal property) are paid.

*After the elective share is calculated, the amount payable to the surviving spouse is then reduced by the property which passed to the spouse automatically at death. Examples of such property are listed in the section titled “Property that Passes Without a Will.”

*A petition for elective share must be filed within 9 months of the date of decedent’s death.

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What are the Requirements for a Validly Executed Will?
  • Testator must be 18 years of age or older;
  • Will must be signed by testator; and
  • Will must be signed by 2 attesting witnesses (preferably disinterested witnesses) in the presence of the testator and each other.

*If a witness is also a beneficiary under the Will, the witness forfeits any interest that exceeds what the witness would have received under intestacy.

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Is a Handwritten Will Valid?

In order for a handwritten Will (also known as a holographic will) to be valid, the following requirements must be met:

  • It must be signed by the testator;
  • All material provisions of the Will must be in the handwriting of testator; and
  • The testator’s handwriting must be proved by 2 witnesses.

*There is no requirement that a holographic will be attested to by subscribing witnesses.

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How do You Revoke (cancel) a Will or Part of a Will?

A Will or part of a Will may be revoked if one of the following occur:

  • Testator executes a subsequent Will that revokes the prior Will or part expressly or by inconsistency;
  • Testator executes a document of revocation with all the formalities of an attested Will or a holographic Will which revokes the prior Will or part expressly; or
  • Testator (or another person in the testator’s presence and by the testator’s direction) physically destroys the Will (burns, tears up, cancels, obliterates, or otherwise destroys) with the intent and for the purpose of revoking it.
  • Both a subsequent marriage and the birth of a child of the testator will revoke a Will in whole or part, but divorce or annulment of the subsequent marriage does not revive a prior Will.

*It is risky to make handwritten changes to a Will, even if testator signs his or her initials, and should be avoided if possible.

*When a Will provision is validly revoked, the property referred to therein passes under the Will's residuary clause in the absence of a contrary intent.

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