Frequently Asked Questions
- Probate of a Will
- Probate in Common Form
- Probate in Solemn Form
- Will Contests
- Initiation of contest
- Challenges and Burdens of Proof
- Lack of Testamentary Capacity
- Undue Influence
- Confidential Relationships
- Statute of Limitations
- Do I Need A Will?
- What Happens to Property that Passes Without a Will?
- What is Spousal Share?
- What are the Requirements for a Validly Executed Will?
- Is a Handwritten Will Valid?
- How do you Revoke (cancel) a Will or Part of a Will?
- Do I Need a Trust?
- How do you probate a will?
- The probate of a will is initiated by filing a petition with the probate court.
- Who is responsible for offering the will for probate?
- It is the duty of the personal representative named in the will to offer the will for probate.
- Are there different kinds of probate?
- Yes, wills may be admitted to probate in common form or in solemn form.
- What is a probate in common form?
- Most often, wills are offered for probate in common form. The process is somewhat simpler. A probate in common form can be set aside later however for reasons such as fraud or if someone later proves that the testator (the person who’s will it is) did not have the capacity to make a will, was unduly influenced to make the will, or the will was revoked before the testator’s death.
- What is the procedure for offering a will for probate in common form?
- Generally, the procedure for offering a will for probate in common form is to file a petition, produce the will, and offer the testimony of the subscribing witnesses to the will.
- What type of information must be included in a petition offering a will for probate in common form?
- The identity of the person filing the petition;
- The name, age if known, date and place of death, and residence at death of the deceased person;
- The date the will was signed and the names of the witnesses to the will;
- The will or a copy of the will (with the original to be presented at the hearing);
- The names and relationships of the people receiving property in the will and their city of residence if known;
- Similar information for the people who would inherit if there was not a will;
- If any of the people identified above are not yet 18 years old or have some other disability then that should be identified to the court;
- The value of the testators estate unless bond is waived;
- Whether the filing of an inventory and accounting has been waived in the will;
- A statement that the petitioner is not aware of any document revoking the will offered for probate and believes that the document being offered is the decedent’s last will
- When are wills offered for probate in solemn form?
- Generally, wills are offered for probate in solemn form when an objection to the will is anticipated. Notice is required to be given to all interested people (those who receive property under the will and those who would have if received property if there had not been a will).
- Does probating the will in solemn form mean there cannot be future will contests?
- Yes, if all interested persons are notified.
- Is the probate void to those persons not notified?
- The probate is not void as to those persons not notified, but only has the effect of a common form probate.
- What is a will contest?
- A will contest is a legal proceeding challenging the validity of a will.
- How is a will contest started?
- A will contest can be started at the time the will is offered for probate by filing a written objection to the probate. After the will has been admitted to probate the will contest must be initiated by filing a verified complaint in Probate Court.
- Is there cost involved?
- The person contesting the will must post a $500.00 bond. There also may be filing fees charged by the court clerk.
- Where is the will contest tried?
- The will contest is to be tried in the county in which the will is admitted to probate.
- Who bears the burden of proof?
- The person supporting the will has the initial burden of proof to establish the validity of the will.
- Once the proponent has produced the will and proven its formal execution and the will has been read to the jury, the burden shifts to the contestant to invalidate the will.
- On what grounds may a contestant invalidate a will?
- There are numerous grounds upon which a contestant may try to invalidate a will including:
- Lack of testamentary capacity (infancy or unsound mind)
- Fraud or undue influence
- Improper execution or attestation
- Revocation by the testator
- There are numerous grounds upon which a contestant may try to invalidate a will including:
- At what age can a person make a will?
- Any person of sound mind who is eighteen years of age or older may make a will.
- What is required to show that the person had capacity to make a will (testamentary capacity)?
- Generally, all that is required to show testamentary capacity is that the testator was aware of the property of which she was giving away and how she was distributing it, knew who the people were who you would normally expect someone to leave their property to, and understood the significance of how she was distributing her property.
- What evidence is relevant in determining testamentary capacity?
- Evidence regarding factors such as physical weakness, disease, old age, failing mind or memory, and impaired perception is generally admissible.
- What is undue influence?
- Undue influence is that level of influence that goes to the extent of depriving the testator of her free agency (in other words, deprives her of making her own decisions).
- Who has the burden of proving undue influence?
- The burden of proving undue influence is on the person contesting the will.
- What are some examples of “suspicious circumstances” that are often used as evidence of undue influence?
- The existence of a confidential relationship between the testator and the beneficiary
- Physical or mental deterioration of the testator
- The testator’s advanced age
- Secrecy concerning the will’s existence
- The unjust or unnatural nature of the will’s terms
- The testator being in an emotionally distraught state
- The beneficiary’s active involvement in procuring the will
- Discrepancies between the will and the testator’s expressed intentions
- Fraud or duress directed toward the testator
- What is a confidential relationship?
- Because confidential relationships assume a variety of forms, courts have been hesitant to define precisely what constitutes a confidential relationship. The existence of a confidential relationship together with a transaction by which the dominant party obtains a benefit, gives rise to the presumption of undue influence.
- Do acts of kindness and attention show undue influence?
- Influence arising from mere acts of kindness and attention does not constitute undue influence unless the acts are carried out with the purpose and design of subjecting the mind of the testator to the influence and direction of the person exercising the influence
- Who has the burden of proof regarding confidential relationships?
- In order to rebut allegations of undue influence and/or the presumption established by proof of a confidential relationship and a benefit to the dominant party, the beneficiary must show the fairness of the transaction and the nonexistence of the presumed undue influence
- Is fraud the same thing as undue influence?
- Though seemingly similar, they are conceptually different theories. Fraud differs from undue influence in that it does not override the testator’s free will, but instead induces the testator to exercise that free will in a manner based upon false information
- What is fraud?
- The basis of fraud is misrepresentation or deception. It involves a trick or artifice or the other use of false information to induce a person to dispose of his or her property in a way that he or she would not otherwise have done but for the fraud
- A will or any part of the will can be revoked by the following:
- A subsequent will…which revokes the prior will or part expressly or by inconsistency
- Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a nuncupative will, which revokes the prior will or party expressly
- Being burned, torn, canceled, obliterated or destroyed, with the intent of the purpose of revoking it by the testator or by another person in the testator’s presence and by the testator’s direction
- Both the subsequent marriage and the birth of a child of the testator, but divorce or annulment of the subsequent marriage does not revive a prior will
- Is there a statute of limitations in Tennessee with regard to the probating of a will?
- No, when probated, the will relates back to the time of the testator’s death.
- The only applicable statute of limitations applies to actions to contest or set aside the probate of a will. Those actions generally must be brought within two years from the entry of the order admitting the will to probate.
Please note that the information provided herein is for the convenience of the reader, but is not legal advice. Reliance on this information does not create an attorney-client relationship. Reliance on this information without consultation and representation by a lawyer is discouraged.
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 children||Spouse inherits entire intestate estate|
|Spouse and children||Spouse 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 spouse||Children equally share the intestate estate; issue of deceased children take by representation|
|Parents but no spouse or children||Parents equally share the intestate estate|
|Siblings but no parents, spouse, or children||Siblings equally share the intestate estate; issue of deceased siblings take by representation|
|Nieces/nephews, but no siblings, spouse, or children||Issue 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.
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.
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 years||10% of the net estate|
|3 years but less than 6 years||20% of the net estate|
|6 years but less than 9 years||30% of the net estate|
|9 years or more||40% 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.
- 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.
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.
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.
*One should consider whether the establishment of a trust would be beneficial, especially where minors or individuals with a disability are involved in order to adequately protect their needs in the future.
*Money or property left to a minor outright in a Will will be overseen by a Court or someone appointed by a Court.
*Money or property left to a minor through a trust, whether a testamentary trust set forth in a Will or a separate trust agreement, is handled by the trustee selected by the maker of the trust in the way the trust sets out.
*Thus, having a trust can allow more control and direction over how a minor’s property will be handled and by whom.