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Recently attorney Jim Higgins stopped by WSMV’s Better Nashville to discuss the differences between a power of attorney and a conservatorship in Tennessee. Both of a power of attorney and conservatorship enable another person to make decisions or take actions on an individual’s behalf. However, there are different circumstances as to when each of these legal actions should be utilized. For instance, a power of attorney is a legal form utilized when the principal, or person granting the decision making authority, is mentally capable of granting that power to another person. In contrast, a conservatorship is a legal proceeding in which a court designates another individual, the conservator, to make decisions and take actions on behalf of the ward. The video below provides some further insight into the benefits of each. If you have any questions regarding a power of attorney or a conservatorship in Tennessee, contact The Higgins Firm.

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Working as a Nashville probate attorney, I often hear a number of misconceptions that many people have when it comes to probate. When a loved one passes away, many people assume that they will be entitled to a portion of the decedent’s complete estate as provided in the will or the laws of intestacy. However, that may not be the case depending on a number of factors including the amount of debt a decedent had. If you have questions regarding what you may be entitled to in the probate process, contact the Nashville probate lawyers at The Higgins Firm.

Although you may have been named as a beneficiary of an estate, certain requirements must be met by the executor or administrator before any beneficiary recovers any of the assets from the estate. Specifically, there are certain priorities of claims that must be paid out before others receive a portion of the estate. Each class of claims must be paid out in its entirety before the next class of claims may be paid out. The first class of claims that are paid out includes administrative expenses, attorney’s fees and administrator’s fees. The second class of claims that are paid out includes funeral expenses. The third class of claims includes any types of taxes or assessments owed to the federal or state government. The fourth class of claims includes any claims made by creditors. Only after each of these classes of claims are paid out in full can the beneficiaries then receive a portion of the estate. If an estate cannot pay out all of the claims, it is considered to be insolvent and the beneficiaries will not receive any of the assets.

Obviously, the amount of debt that a decedent may have had will play a large part in determining whether or not the beneficiaries will recover from the estate. For the most part, debts are still required to be paid to creditors after someone dies. However, there are different types of debt including secured debt and unsecured debt. An unsecured creditor may be a credit card company or other business that does not have a secured interest in any specific property. The administrator or executor is required to send notice that an estate has been opened to any known or potentially known unsecured creditor of the estate. Unsecured creditors are required to file a claim with the estate in order to recover. Many unsecured creditors will send bills and collection notices to the individual in hopes of getting paid from the estate. However, the personal representative of the estate is not required to pay the unsecured creditor until a claim has been filed.

In contrast, a secured creditor is a person to whom money is owed that has a secured interest within the property. For instance, with a mortgage, a bank is a secured creditor that has a secured interest in the house. The personal representative is not required to send notice to secured creditors because even after someone dies, the bank as a secured creditor can repossess the property from the estate if payments are not made. It is important to make sure that payments continue to be paid to secured creditors.

Understanding an estate’s amount and type of debt can help beneficiaries better understand what they may be able to recover. If you have any probate questions regarding your ability to recover from an estate, contact The Higgins Firm.

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Although many of us are willing and capable of making decisions and acting for ourselves, there are some who incapable of doing so for a number of reasons. Whether it is due to a temporary illness or a lifelong disorder, many individuals will rely upon the help of another to assist in making certain decisions or to perform specific acts. There are certain legal avenues that can be taken to enable another in making these important decisions. Both a power of attorney and a conservatorship are legal actions that allocate the decision making authority of a person to another individual. While a power of attorney and a conservatorship achieve the same goal of allocating that authority to another person, these legal actions are utilized in different circumstances depending on the situation.

It is important to identify the differences between a power of attorney and a conservatorship to know which act should be used when. A power of attorney is a written legal document that specifically allocates certain rights or powers to act or make decisions to another person. The person granting these powers is known as the “principal” or “grantor” and the person receiving the powers is known as the “agent” or “attorney-in-fact.” In other words, the principal grants certain powers to the agent who can then act on the principal’s behalf. A power of attorney can be drafted to grant a broad range of powers or a very narrow and specific power. In addition, a power of attorney can designate exactly when the powers shall be allocated to the attorney-in-fact. For instance, a power of attorney could come into effect immediately upon the principal’s signature or the powers could be allocated only upon the incapacity of the principal. A power of attorney is an easy and cost effective way to allocate authority to another individual. However, one of the main requirements of a power of attorney is the ability or capacity of the principal to allocate these powers. This document is only effective if the principal has the mental capacity to perform this legal act.

If the principal does not have the mental capacity or is not of sound mind to execute the power of attorney properly, then a conservatorship may be needed. A conservatorship is a formal legal proceeding in which a judge determines that the individual is not capable of making decisions for him or herself and that decision making authority should be granted to another person. The person who is appointed is known as the “conservator” while the disabled individual is known as the “ward.” Because a conservatorship is a legal proceeding that essentially takes away the decision making rights of another individual, it is a more involved and time intensive process that includes filing a number of required documents with the court and a hearing in front of a judge. In addition, the court will designate exactly who the best individual is to be appointed conservator at the hearing. A conservatorship will typically last throughout the life of the ward and will only be terminated by a judge.

If you have questions about whether a conservatorship or power of attorney would be best needed, contact our Tennessee lawyers at The Higgins Firm.

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As a Tennessee probate attorney, I receive a number of calls regarding Power of Attorney and the ability or inability to perform certain tasks on behalf of someone else. Many people want to know what can or cannot be done with this legal document. So often, many do not understand what the limitations are on the person who has been allocated these powers or authority. Obviously, being given such authority in a Power of Attorney is a great responsibility. If you have questions regarding a Power of Attorney, contact Nashville estate lawyers at The Higgins Firm.

What exactly is a Power of Attorney? A Power of Attorney is a legal document that gives certain powers to an agent, also called the “attorney-in-fact,” to act on behalf of the person who is allocating the authority, also called the “principal.” In other words, this legal document shows who and what powers that the attorney-in-fact has been given by the principal. The document will explicitly state what powers are being granted and in what circumstances that authority is given.

While the Power of Attorney does not have to be approved by a judge or any other court proceeding, an attorney can draft this document and tailor the powers being granted according to the principal’s wishes. Some individuals may elect to grant only certain powers to the attorney-in-fact. For instance, an individual may utilize a Power of Attorney to allocate authority strictly for an automobile sale. Others may choose to grant a wide range of powers to the attorney-in-fact. Often, elderly people may execute a Power of Attorney granting authority to a family member to handle a wide range of financial affairs because they are no longer able to do so themselves easily. You should be aware of what powers that your Power of Attorney grants as well as the powers that it does not grant.

In addition, an individual may choose in what circumstances the powers are given to the attorney-in-fact. Some people choose to have the powers granted only in the event that the principal is incapacitated or unable to make decisions for himself. In this case, the Power of Attorney can be very helpful because the attorney-in-fact is then able to handle certain affairs as the principal is unable to do so for him or herself. Others may choose to have the Power of Attorney come into effect immediately without specifying the requirement of certain circumstances. You should be aware of when your Power of Attorney would come into effect.

It is important to understand the implications of using a Power of Attorney. By granting these powers to another person, you should completely trust the individual who you are naming as attorney-in-fact. This individual will have the ability to act as you in those circumstances set forth in the document. It is important to understand that the principal still maintains the ability to act on his or her own behalf. The principal can also revoke the document at any time that he or she so chooses. By revoking the document, the principal is able to take away all of the authority that had been granted by the Power of Attorney. Also, it is important to note that the Power of Attorney becomes void and no longer has effect upon the death of the principal.

If you have questions about a Power of Attorney in Tennessee, contact the Nashville estate lawyers at The Higgins Firm.

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Recently, attorney Jim Higgins appeared on Nashville’s WSMV News and More at Midday to discuss the task of administering an estate. After someone passes away, often the estate will have to go through the probate process to ensure that debts are paid off and any assets are distributed. The probate court will appoint an executor or administrator, an individual that is responsible for making sure that these tasks are completed. Many people become appointed but do not understand what their responsibilities entail. If you have questions about your role as an executor or administrator of an estate in Tennessee, this video can provide an overview of your duties. Feel free to contact our Nashville probate lawyers should you have any more questions. Our team of Nashville based probate attorneys would be happy to explain the estate administration process in Tennessee.

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With the influx of information on the internet today, you can find just about anything on the web. There are all sorts of do-it-yourself websites and instructional videos that allow you to shoulder the work while cutting the extra costs of hiring someone else. You may turn to a particular website or YouTube video to learn how to change the oil in your car or how to install a new thermostat. However, you likely would not turn to the internet for more complicated tasks like building a whole house or performing surgery. There is a reason we hire experts and professionals to perform certain jobs. We know that there is much less room for potential error in hiring an individual with experience and expertise. That fact is especially true when it comes to estate planning.

With the rise of websites like LegalZoom, Rocket Lawyer, or other do it yourself legal services, many people are looking to draft and execute their own legal documents. Other individuals may look for an easy fill-in-the-blank document as an option. The reality is when you attempt to handle legal matters on your own, there is much larger room for error than you realize. When drafting and executing a legal document like a last will and testament, there are a number of requirements that the document itself, the testator, and the witnesses must meet for the will to be valid under the law. An individual without the experience and expertise of an attorney may miss just one requirement needed under law. One small oversight could end up drastically altering the effects of such an important document.

The substantive text within a document like a will or power of attorney is the material that should declare your specific wishes. You want to make sure that your wishes are set forth in full. However, if you are attempting to draft your own will or power of attorney, you may forget to include or exclude certain aspects or clauses depending on your specific wishes. As someone without legal experience, you may not know enough to include or leave out a sentence or two that could have a lasting impact. An attorney who is drafting your will or power of attorney will ensure that these material clauses are included or excluded within the document depending on what is best for your situation.

The execution of the document can be just as legally significant as the text of the document. There are certain requirements that must be met when the testator executes a last will and testament. Without someone with knowledge of the requirements overseeing the execution of the document, there is a chance that your document could be invalid. By having an attorney present during the execution of a document, you are ensuring that your important legal documents are executed properly and in compliance with requirements under the law. After all, when a document is presented in court, it will be too late to worry about whether the execution was valid. You want to ensure a legal document’s validity at the time of its signing.

If you have questions about drafting or executing your will or other legal documents, contact the Nashville wills lawyers at The Higgins Firm. Our team of estate planning attorneys would be happy to answer your questions.

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There is good news for those who may be looking to utilize the small estate option in Tennessee. Recently, Governor Bill Haslam signed into law an amendment to the Small Estate Act. The amendment increases the size of an estate that may utilize a small estate affidavit from $25,000 to $50,000. This increase will allow even more individuals to look toward the small estate option.

So what are the benefits of a small estate administration? First and foremost, the small estate administration is a much faster process than fully probating the estate. While fully probating an estate will take at least four months, a small estate can often be opened and closed in the court within the same day. This allows any creditors to be paid faster and beneficiaries to receive their portion faster as well. Also, another benefit is that attorney’s fees will be much lower with a small estate. Because a small estate is a more streamlined process, there will not be as much legal work that needs to be done by an attorney.

You may be wondering what limitations are put on a small estate? There are two main qualifications regarding the small estate administration in Tennessee. The first qualification is that the value of the decedent’s property must not exceed $50,000. Second, the Small Estate Act requires that the property must be comprised of personal property individually held by the decedent at the time of passing. Personal property does NOT include any real property, or real estate in other words. If the decedent’s estate is valued at more than $50,000 or if the estate includes real property, then a small estate administration cannot be used. Rather, the estate would likely have to be fully probated.

If you have questions about whether a small estate may be an option for you, feel free to contact the Nashville small estate attorneys at The Higgins Firm. Our team of probate lawyers would be happy to answer your questions.

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As a Tennessee probate attorney, I field many different questions from clients and potential clients. Popular misconceptions or “urban legends” are the motivation behind some of these probate questions. Many people will assume a particular fact because they heard it from a friend or family member. However, like many areas of life, it is always best to take these probate “urban legends” with a grain of salt. If you have any probate questions, be sure to contact the Nashville probate attorneys at The Higgins Firm.

One of those popular misconceptions is that leaving one dollar to an heir in your will is the only way to disinherit that person. The thought process behind this concept is that by leaving a dollar to an individual in a will, that person cannot inherit any more than that amount. However, leaving a dollar to someone in your will is completely unnecessary. While the disinherited will in fact receive only a dollar, there is a much easier way if you are seeking to disinherit an individual. The alternative is as simple as not naming that individual within your will.

Some wills include an introductory clause stating that the decision to not provide for those not listed within the will is intentional. This is allows everyone to know that those not listed within the will have been excluded without the necessity of specifically naming individuals. By leaving someone out of your will, you are able to accomplish the goal of disinheriting the individual without calling more attention to the situation.

However, you may feel that it is necessary to specifically exclude someone by name. Doing so allows the individual to understand that they have been excluded. While this is not often recommended, it can be helpful if there is likely a contested matter within the family. It can help to quell any potential dispute.

Understandably, disinheriting an individual from your will can be a difficult decision. You may have a number of reasons for doing so. A person may choose to leave someone out of their will because they are very well off and any assets would be better utilized someone else. A person may also choose to leave an heir out of their will because the heir would not be capable to handling an inheritance due to some poor life choices. Whatever the reason, you are not obligated to document the reason why. In fact, it is recommended that you do not list a particular reason. Listing a particular reason can only incite a potential dispute.

While you have the ability to disinherit almost any potential heirs in your will, there are some limitations. For example, if disinherited, a spouse has the ability to elect against the will depending on the length of a marriage. However, for the most part, you have the ability to disinherit your heirs if you so choose.

If you have any Tennessee probate or wills questions, contact our Nashville probate attorneys at The Higgins Firm. We would be happy to answer your questions.

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When an individual passes away, his or her assets may or may not be required to go through the probate process in Tennessee’s probate court. The determination of whether probate is needed is often dependent on what types of assets were left by the decedent.  Often many beneficiaries of an estate may be confused about what is rightfully owed to them. By determining whether certain assets are required to go through probate, you will have a better understanding of what you may be entitled to as a beneficiary of an estate or what is required to probate an estate. This understanding can help to prevent any potential disputes in the probate process.

As mentioned, only certain assets are required to go through the probate process. Assets that were owned solely in the name of the decedent or assets that did not have beneficiary designations will need to go through the probate court in Tennessee. So what exactly does that mean? Here are a few common types of assets that are NOT required to go through the probate court:

  • Any type of 401K, IRA plan or other retirement plan that lists a specific individual as beneficiary. The listed beneficiary will receive the assets within the account without having to go through the probate court. However, if the estate is listed as the beneficiary or if there is no living beneficiary listed, the asset will be a probate asset.
  • Any assets that are owned jointly with another individual are not required to go through probate. This can include bank accounts, real estate, automobiles, or any other assets owned jointly. Specifically, real estate that is owned as joint tenants or tenants by the entirety with rights of survivorship will be considered a non-probate asset. Ownership of these assets will pass automatically upon the owner’s passing.
  • Any asset that has a “transferable on death” or “payable on death” designation which lists a specific individual as beneficiary will not be a probate asset.
  • Any life insurance policy that designates a specific beneficiary other than the estate will be considered a non-probate asset.

Any other types of assets that were solely owned by the decedent will have to go through the probate process. It is important for beneficiaries of the estate to understand what all comprises the estate. Many beneficiaries may misunderstand and think that everything owned by the decedent should be included within the estate. However, that is not the case. By recognizing what is required to go through the probate process, beneficiaries can better understand both what is required to be probated and what will be distributed as a part of the probate assets.

Even after determining that there are probate assets, Tennessee law provides several options for probating an estate. Depending on the type of assets within the estate, you may be able to expedite the probate process. If you have questions about probating an estate, be sure to contact the Nashville probate attorneys at The Higgins Firm. Our experienced team of Nashville probate lawyers will be able to answer your questions and guide you in the right direction.

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When thinking about what to leave to loved ones after you have passed away, you may first think of your bank account, car, or house. While many people choose to leave their tangible assets to specific individuals in a will after they have died, more and more people are choosing to leave behind their digital assets. Although many will not think of their digital assets when creating their estate plan, digital assets often can be very valuable. In addition, these non-tangible assets can also be harder to pass down to your loved ones due to their nature. Specifically, you cannot exactly hold or move your social media or email accounts like a painting or television. You often need to know certain information to access these assets. If you have a question about passing down your digital assets, contact the Nashville estate planning lawyers at The Higgins Firm.

Possessing digital assets is a growing trend that shows no signs of slowing down. Many people store their music, pictures, or other information online. Whether the assets contain actual monetary value or merely sentimental value, you as the owner have the ability to choose what should happen to those assets after you are gone. People may want to pass along their Facebook, Twitter, blog, or email accounts to loved ones. Other types of digital assets may include website domain names, online stored documents, online bank accounts, iTunes accounts, or anything similar. The choice to pass on any of these assets should be left up to you.

One of the best ways to pass on your virtual assets is through your will or estate plan. You can choose to specifically grant your heirs access to your digital assets through these legal documents. Designating a digital executor can allow this person to have access to these items. Although this will grant the individual legal authority for access, some user-service agreements and laws may restrict access. Unfortunately, some of these agreements and laws are behind the trend of passing on these digital assets.

When accessing digital assets, you need to know usernames, passwords, or even answers to security questions. While these are obviously needed for security purposes, these requirements often pose a hurdle to passing on any type of digital assets. For this very reason, it is important to keep a master list of any information needed to access your digital assets. Keeping a master list also allows any beneficiary to know exactly what digital assets make up your estate. Without such a list, your loved ones would be left wondering what or where these digital assets are. In addition, it is important to keep such a master list in a safe location like a safe deposit box. You do not want to keep this list within your estate planning documents because these documents could be placed into any probate court filings and thus be open to the public.

If have questions regarding your estate plan or passing on your digital assets, contact the Nashville estate planning attorneys at The Higgins Firm. Our team of lawyers would be happy to answer your questions.