Tennessee Estate Law Blog

Estate planning can be a difficult and confusing process. This process can be made even more complicated when you have a business or foundation that your family members may be involved in. This appears to be the case with Paul Newman’s family. The Newman’s Own company and foundation started in 1980 when actor Paul Newman and author A.E. Hotchner began making homemade salad dressing and giving it to neighbors as Christmas presents who came by as they were caroling. Newman’s Own made a profit of almost one million dollars two years later and donated most of it to charity. Then in 1993, Newman’s daughter Nell began Newman’s Own Organics, a division of the company. Newman’s Own now makes pasta sauce, popcorn, salsa, frozen pizza and other products, and the company has stated that it has given away more than $400 million to charities such as summer camps for seriously ill children.

Newman had his attorney draft a letter in 1999, that stated his intention to give his children the major voice in distributing funds for charity. He stated these intentions again in meetings in 2006 with family members, lawyers, and accountants and it was also on a 2007 video interview.

After Newman went into the hospital changes were made to his estate plan and on April 11, 2008 he rewrote his will and appointed two associates to controlling positions in the Newman’s Own Foundation on July 29, two months before his death. When his will was read, his family members learned that Newman’s daughters would not be on the board of the Newman’s Own Foundation and that millions of dollars for their personal foundations would go instead to Newman’s wife’s marital trust. Newman’s family now claims that Newman’s Own, and its foundation are being  mismanaged by the man who’s served as chief executive for several years. The dispute has to do with concerns about the changes Paul Newman made to his estate plan in his final years.

It is important that when a family has a business or foundation together like in this case, that communication about who is to be in charge is made clear from the beginning. This can be done by making it clear who is the administrators of the business or foundation instead of just giving and including all family members in the business as soon as possible. These steps will help to make sure the family business and your family members are honored even after you pass away.

If you need help making sure that your estate plan is the best option for your family members and perhaps even for a business that you may own, then you should contact one of our experienced estate planning lawyers at the Higgins Firm. We know how important your loved ones are to you and we will help you discuss your options and make the best estate planning choices for you so that your family and the work you do is protected long into the future even after you pass away. If you need help or have questions about estate planning, you should speak to a Tennessee estate planning lawyer with the Higgins Firm. We will answer any questions you may have and discuss your options with you so that you can protect your loved ones and your businesses even when you are no longer around.

Please contact us today online or by calling 800.705.2121 to discuss your legal options.

There has been a lot of news about the Sofia Vergara embryo case. However, beyond the public’s desire to look into the life a celebrity, the reason a case like this so important is because it may affect laws, policies and regulations about how to handle cases similar to this one in the future. It may also help to answer questions about legal obligations in these kinds of cases.

The Sofia Vergara embryo case raises questions and sparks debate about things such as what should a judge decide if a woman or a man has undergone subsequent treatment for cancer and is therefore left incapable of producing gametes that would make it possible to be a genetic parent in the future or what if something has emerged that would question whether a person would be a fit parent, such as committing a serious crime against a child.

In one case, a judge in a divorce case made the ruling that embryos are “community property” and that awarding the embryo to the wife was “just and right and a fair and equitable decision.” Later, that decision was overturned by the Court of Appeals for the First District because it was noted that the couple’s original contract was enforceable because it demonstrated “a voluntary unchanged mutual intention of the parties regarding disposition of the embryos upon divorce.” Another case with no previously written agreement, an earlier decision to award the frozen embryos to the wife was reversed by an appeals court on the grounds that the husband had a constitutional right not to be forced to father a child.

If this may be issue later some couples sign consent forms requiring both parents to agree to any release of their embryos should they divorce, and that if they cannot agree on what to do with the frozen embryos, then they would be donated to medical research. In a Tennessee case, the court awarded embryos to a wife and directed her to implant them in her body within a reasonable time. An appellate court reversed that decision because it was determined that the original embryo consent agreement should be upheld.

Cases similar to this one also make us think about whether a person that was part of a couple should force the other person to become a biological or genetic parent against their will. If the fertilization of an embryo takes place outside of a woman’s body, then it just makes logical and legal sense that both parties would and should get a say about what happens to them. If no agreement can be made then the issue becomes tricky and often complicated and this is one cases like the one happening in the media right now are so important.

If you have a similar case or questions about how this case may affect your own, it is recommended that you contact one of our compassionate and experienced Estate lawyers at the Higgins Firm. We will look over your case and answer and questions you may have. We will also work with you to fight for the best outcome for your particular case.

Please contact us today online or by calling 800.705.2121 to discuss your legal options.

Many people may believe that they do not have to be worried about federal estate tax if they do not make a large amount of money, but if you have a substantial amount of life insurance, own a home or have a good retirement account or plan, there are some things you need to think about and consider when it comes to estate tax. If you have questions or concerns about how estate tax may affect you and your family, you should talk to a estate planning lawyer at the Higgins Firm. We will help you to determine the best plan for you and answer any concerns you may have.

So, you may be asking what exactly is included in estate tax? Federal estate tax includes assets such as proceeds from any life insurance you may have, any house or property you own including vacation and rental properties. It also includes retirement plan accounts, vehicles, furniture, any valuable collectibles you may have and any other property and items you own. Finally, if you have shares in a family business or corporation those are also included.

If you are single, any life insurance coverage you may have is subject to federal estate tax. If you are married, it is not that big of an issue because the life insurance benefits would go to the surviving spouse tax free because of a marital deduction. However, this only applies if your spouse is a citizen of the United States.

It is important to know that the value of life insurance that you have “incidents of ownership” over will be included in estate tax when you pass away. Incidents of ownership include changing beneficiaries,canceling a policy, or borrowing from a policy. If you have these incidents of ownership it does not matter who you named as the beneficiary. If you have a life insurance policy for yourself and you name a family member has your beneficiary, when you pass away   the death benefits will be included in the estate tax even if the money never goes through your estate.

You have an option if you want to avoid estate tax on your life insurance. You can have an irrevocable trust set up but if you use a trust, you will not be able to change the beneficiary once the policy is in the trust. If you do not have life insurance or assets to think about due to the federal exemption, you may also need to think about death taxes in the state where you live. Finally, you will also have to deal with estate taxes if you name a guardian to take care of your young children or if you inherit money from a relative or friend that has passed away.

Estate planning and tax can be confusing and complicated because there are many things to consider that you may not be aware of even if you do not make large amounts of money. If you have questions about estate tax or want to start estate planning, it is a good idea to consult an estate planning attorney with the Higgins Firm. We have the experience and knowledgeable to go over all the options with you and let you know about any tax issues you may need to be concerned about. We care about our clients and will help you determine the best estate plan for your family so that they will be protected in the future.

 

Please contact us today online or by calling 800.705.2121 to discuss your legal options and any questions you may have.

 

When someone you love passes away, you may inherit property, money, or other possession if that person names you in a will. If there is no will, then a court may decide who gets to have what and you may get little to no say. It is not only important to have a will though, it is also important that you follow all the rules and guidelines about making sure a will is valid in your state. This is why if you are wanting to have a will drafted, it is a good idea to talk to a estate planning lawyer with the Higgins Firm. We will answer any questions or concerns you may and help you to draft a will that protects your property and loved ones even if you no longer around.

In a recent case, the Court of Appeals found a Will was invalid after one of the decedent’s heirs filed a will contest alleging that the decedent’s will was not properly executed.  Specifically, the heir argued that because the will was not signed by witnesses according to the law the Will should be thrown out.   Tennessee Code Annotated Section 32-1-104 requires that the testator and at least two witnesses sign a will any non-holographic will.

The decedent signed the second page of the will and then immediately after the testator’s signature began on the same page an “affidavit” of the witnesses, which continued onto a third page where the two witnesses signed the affidavit. The two witnesses signed the affidavit but did not sign any other section of the will. The appellate court ruled that the witnesses, therefore, did not actually sign the will. They signed a self-proving affidavit under a separate statute, Tennessee Code Annotated Section 32-2-110. Since the witnesses did not sign the will itself, the will was not valid due to improper execution and the decedent died without having a valid will.

If a person dies without a valid will a Tennessee court will decide how the estate gets distributed. If a person wants to contest a will, the three common grounds they may have to do so include improper execution, like in this particular case, lack of capacity, or undue influence. In Tennessee, a will is only valid if it is signed by the testator and two witnesses. The witnesses must sign the will while the testator is present. If it is contested that someone lacked the capacity to make a will, the court will take into consideration the testator’s physical health when the will was executed and their age and mental state. Finally, if a claim of undue influence is made, meaning that someone is accusing someone else of making a person create a will that benefits them, the whole will or a part of it may be determined to be invalid.

When a will is contested, there may be other technical issues to consider such as the lawyer who helped draft a will may be asked to testify or the will may state that anyone who wants to challenge the will may have to forfeit their right to any benefits they may receive.

Since there are specific laws in Tennessee concerning wills and different reasons a person may contest a will, it is crucial that a will be drafted and executed properly. In order to make sure that your will is valid when you pass away, you should consider speaking to an experienced and caring estate planning lawyer at the Higgins Firm. We will help you to make sure that your will is valid and we will also discuss with you any other options you may have to help you take care of your family and loved ones in the future.

You can contact us online or by calling 800.705.2121 to discuss your options and any questions you might have.

The world tragically lost a Blue’s icon recently and it looks like the families troubles are continuing in probate court. The four daughters of the late musical icon BB King, Patty King, Karen Williams, Rita Washington and Barbara Winfree, have had their lawyer file new legal documents in probate court, indicating that there is another will by their father who in his 2007 will named his long-time business manager, LaVerne Toney, as the sole executor of the estate. Riletta Mitchell, another daughter was listed second, but she died in September of last year.

Apparently, BB King’s daughters have been at odds with LaVerne Toney and Myron Johnson, another personal aide for months. They claim that Toney misappropriated funds and mistreated BB King before his death, and also claim King had been poisoned. According to news sources, in the legal papers, the daughters only accuse Toney of being unqualified to be the executor of BB King’s estate.
BB King’s daughters also allege that Toney denied King the proper medical care he needed and also changed the locks on his home so that when the BB King died on May 14th, he had no family and friends with him. A lawyer representing Toney and the estate dismisses the claims and states that they are completely ludicrous’ and ‘unsubstantiated by any true facts’. These new accusations come before the daughters are scheduled to appear in court for a hearing regarding BB King’s will.

So what happens if an original Will is Lost or destroyed in Tennessee? it is important to keep the original will because it is difficult to prove the existence of a lost or destroyed will in Tennessee. In order to prove that a will has been lost or destroyed, a person must establish the following:

• the testator made and executed a valid will in accordance with the forms of law
• the substance and contents of the will
• that the will had not been revoked and is lost or destroyed or cannot be found after a due and proper search.
• These elements, which are imposed to prevent fraud, must be proved by “clear, cogent and convincing proof.
If you need help proving the existence of a lost or destroyed will or if you or someone you care about has questions or concerns about a will or estate planning, you should contact one of our experienced and compassionate estate planning and probate attorneys at the Higgins Firm. We care about our clients and will answer any questions or concerns you may have. We will also help you through the probate court process that we understand can be complex and confusing. We will also be happy to discuss with your estate planning options so that you can make the best informed decision to protect and take care of your loved ones after you pass away.

Remember, it is important for you to have a will so that after you are gone, your loved ones and those you care about will know how to divide up your assets, property and other items. If you do not have a will before you die, this can cause family members to have a longer time in probate court trying to determine who gets what and often times the court will make these final decisions. If you or someone you love needs help in drafting a will or you need help with a will after someone has passed away, you should speak to one of our estate planning and probate lawyers with the Higgins Firm. We will answer any questions you may have and help you decide on the best estate planning for your situation.

Please contact us today online or by calling 800.705.2121 to discuss your legal options.

We all may not know how important estate planning really is, but many may be confused by the process, think it costs too much or just think we do not have to worry about it yet. Here are some tips so you can choose the best plan for whatever stage of life you are in. Once you understand what needs you may have, you should contact one of our experienced estate planning and probate lawyers with the Higgins Firm.

  • If you are younger than thirty

At this stage in life, you probably haven’t given much thought to estate planning. If you do not have many assets, you may be able to get away with not having a will yet, but if you are already making a substantial amount of money or have several assets, then you should think about having a will drafted. Accidents can still happen and this way you make sure that your family is taken care of and your property gets divided according to your wishes.

  • Living unmarried with a significant other

If you want to live with a significant other or partner but remain unmarried, then you should really have a will drafted. If you die without having a will, your significant other may not get any money or property after you are gone, and it may have to go through probate. Your property and other assets most likely will go to your parents or siblings instead.

  • If you have children that are minors

It is really important to draft a will if you have children. This way you can appoint a guardian of your choosing for your kids and decide who gets your assets and property. If you do not have a will, your children may be appointed a guardian by the court. It is also a good idea to invest in some life insurance if you have children. This enables them to be taken care of in the event of your death.

  • Middle Aged

If you have reached this stage in your life, you may have property, assets, children or even grandchildren that you want to take care of. You may have already considered a will or some other form of estate planning such as a trust. It is important to remember, though, to update your will or trust every few years as your life may change.

There are many factors to consider for you and your family when trying to decide on the best estate plan. These tips can help you get a general idea of what you should be thinking about. If you have more questions or want to have a will drafted, you should speak to one of our knowledgeable estate planning attorneys with the Higgins Firm. We will help you decide what plan will be beneficial for your family and your needs.

Feel free to contact us online or by calling 800.705.2121 to discuss your legal options.

 

 

 

This is a difficult question to answer for many people. Often, it is because people do not know the difference between the two or what is involved in each. It is important to choose the one that is best for your needs so that your loved ones and family members will be protected and taken care of after you pass away. Here are some things we consider with our clients when helping them decide between a living trust or a last will. If you have any more questions about a living trust or a will, you should speak to one of our lawyers with the Higgins Firm. We will go through each option with you and help you with the planning of your estate.


First, it is important to know what a will and living trust mean. A will is a written document that is signed and witnessed that describes how you wish for your property to be divided after you die. It is revocable and can be amended or changed at any point during your lifetime. Finally, it allows you to appoint guardians for your young children. A living trust can provide life-time and after death management of your property. It is a legal written document that places your assets into a trust for your lifetime and then is transferred to a certain beneficiary or beneficiaries when you die. This person is known as a “successor trustee.”
Now, that you know what each one means, you are likely asking, well, which one should I choose? Well, both a last will and a living trust have benefits and disadvantages.• Having a Living trust means that you avoid probate by the court

  • – Your successor will divide up your assets and pay your debts instead of an executor and court deciding the division of property. This will make the process much faster.
    • A living trust may save you money after you die
    – There may be some upfront costs that are actually more than just a will, but since your trust will not go through probate, this can save you money on court costs which may be substantial.
    • Living Trusts can often give you more privacy
    – A living trust unlike a will is not made public, so your estate can be disturbed or divided up in private. If you have out-of-state property when you die, it will not have to go through probate with a living trust as opposed to a will.
    • A Living Trust can benefit you if you become disabled or ill
    – If you become disabled or ill and are unable to handle your affairs, the successor of your living trust can take over for you. If you have a will without a durable power of attorney, the court will appoint a person for you.
    • A Living trust can be used for any size estate

While it may appear that a living trust is a better option, it does some disadvantages. It can be more expensive to set up a living trust versus just a will. It also has to be actively managed after you create it. A living trust can also only control the assets that you put into it, so if you do not fund it before you die, the living trust will be useless and your assets will still have to go through the probate process and may face estate tax concerns.
There are many things to consider when deciding if a living trust or last will is right for you. This is why it is advised to speak to one of our experienced estate planning and probate lawyers with the Higgins Firm. We will answer any questions you may have and will help you to determine which option is best for your situation.
Feel free to contact us online or by calling 800.705.2121 to discuss your legal options with one of our estate planning lawyers.

Recently, I appeared on Nashville’s News Channel 5 Talk of the Town Extra to talk about the basics of probate in Tennessee. If you have recently experienced the loss of a loved one, you know how hard things can be during such a trying time. For that reason, our firm is able to assist and advise you throughout the process. Whether you need help transferring a piece of real estate after someone has passed or need assistance with a small estate, The Higgins Firm is here to help you and your family. The following video provides some of the basic information about probate in Tennessee. If you have any further questions regarding probate, contact the Nashville probate lawyers at The Higgins Firm.

Having entered the New Year you may have created a list of resolutions that you hope to accomplish sometime during 2015. Some may be looking to exercise more, eat healthier, or even save some more money. Although it may not be one of the first things that you think of in setting your resolutions, estate planning is a goal that can be easily accomplished without spending too much money or time. If you have questions about your estate plan, contact the Nashville estate planning attorneys at The Higgins Firm.

So you may be wondering what exactly an estate plan is. In its most basic form, an estate plan is a set of legal documents that explicitly set forth your decision on a number of issues. One of the fundamental estate planning documents is a last will and testament. Most people think of a last will and testament, more commonly known as a will, as designating where you want your assets to go upon your death. However, a will can also do so much more. A will can also nominate someone to handle the administrative affairs of an individual after he or she has died. This individual is known as the executor of the estate. A will can similarly nominate someone to serve as the guardian of any minor children in the event of a death. Courts often look to a will to determine if the deceased parent had a preference for choosing a guardian.

Another important estate planning document is a power of attorney. This document allocates authority to another individual to act on your behalf. You as the grantor of the power are able to specify in what circumstances the agent is able to act on your behalf. Some may choose to grant a wide range of powers to the agent while others may choose to grant only very specific powers to their agent. Similarly, some may choose to have the document only become effective upon the incapacity of the grantor while other choose to have the document and its powers become effective upon the signing of the document. There are two different types of power of attorney documents. One is a power of attorney for finances which can include the ability to conduct business, write checks, contract, etc. The other is a power of attorney for health care which enables the agent to make health care decisions for a person who may not be able to make decisions regarding his or her own health. A power of attorney can be a useful tool in the event that you are no longer able to make decisions for yourself.

There are a number of other estate planning documents that can be very helpful like an advance care directive. An advance care directive is a document designating what type of care you may want in an end of life situation. A living will is a type of advance care directive. Often these documents can ensure that your decisions and desires are met as opposed to leaving such a hard decision up to a loved one.

If you would like assistance in drafting your estate plan, contact The Higgins Firm. Our Nashville based estate planning lawyers would be happy to help advise you as to what documents may fit your needs.

While it seems as though you can be taxed for almost anything these days, there is good news for those who may be worried about potential inheritance taxes in Tennessee. Many states have made a push to eliminate inheritance taxes in an effort to draw new residents and businesses. Tennessee has followed suit. The Tennessee state legislature has enacted legislation to gradually increase the inheritance tax exemption amount before completely eliminating the tax in 2016.

The Tennessee inheritance tax exemption allows for any estate valued under the set amount to be exempt from paying the inheritance tax. Only if the value of the estate rises above the set exemption amount is the estate required to pay the Tennessee inheritance tax. The tax rate ranges from 5.5% at the lower end to upwards of 9.5% at its highest. The exemption amount for a decedent’s estate is currently $2,000,000 for any decedent’s death occurring in 2014. That exemption amount increases to $5,000,000 beginning January 1, 2015. On January 1, 2016, the Tennessee inheritance tax is completely eliminated.

The Tennessee Department of Revenue is the organization tasked with levying the state’s inheritance tax. Although an estate may be well under the exemption amount, the personal representative of an estate is still required to provide the Tennessee Department of Revenue with the value of the estate. If the estate is valued at under $1,000,000, a sworn affidavit can be filed with the probate court attesting to the fact that the estate is indeed under the exemption amount and therefore is not owed. This sworn affidavit is known as the Affidavit Waiving Tennessee Inheritance Tax Return, and it functions to release the estate from any taxes owed. If the estate is valued at more than $1,000,000 but still less than the exemption amount, the personal representative is required to file a Tennessee inheritance tax return with the Department of Revenue outlining the assets comprising the estate. The Tennessee Department of Revenue then grants a release to the personal representative of the estate which is filed with the probate court.

Although Tennessee is phasing out its inheritance tax, the federal government imposes an inheritance tax only for larger estates. The federal exemption amount in 2014 is $5,340,000. That amount increases by $90,000 to $5,430,000 in 2015.

If you have questions regarding a Tennessee probate matter, contact The Higgins Firm. Our Nashville based probate lawyers would be happy to speak with you.