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An increasing number of elderly individuals in Tennessee have begun adding their children as joint account owners on their bank account. Understandably, older parents may need assistance in paying their bills or managing their finances. However, it is important to understand the risks in adding a joint owner and the alternatives that people have. If you have questions about what alternatives you or your loved ones may have, contact The Higgins Firm.

In adding a child as a joint account owner on a bank account, many parents do not understand the impact that action can potentially have on a person’s estate. If a parent passes away leaving only one of their children as the joint account owner, that child would be considered the sole legal owner of the account. He or she would not be required to distribute the assets to anyone else as the sole owner of the account. The decedent’s Will would not have any authority as to any potential distribution of the assets because the decedent did not have sole ownership. A will only determines how assets should pass if the asset was solely owned at the time of the decedent’s death. A parent will want to take this into account when developing an estate plan.

Another potential issue in adding a child as a joint account owner is the issue of creditors. When individuals become joint owners of an account, that asset is obviously considered to be jointly owned. If the child who co-owns an account is subject to the claim of a potential creditor like in a lawsuit, then the account is considered to be the child’s asset and would be subject to the claim of the creditor. Similarly, if the child was dealing with bankruptcy proceedings, that asset would be considered to be a part of his or her assets and would thereby be subject to the bankruptcy proceeding. It is important to understand such risk in adding a joint account owner.

So what options are there for people who may need assistance with their finances? A properly executed power of attorney is one way to avoid potential issues. By granting authority to another individual to handle finances, a person can avoid adding a joint account owner and the problems that may cause. If you have questions about a power of attorney, contact the Nashville estate planning lawyers at The Higgins Firm.

 

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If you have experienced the death of a loved one, you know that the period of time following his or her passing can be a confusing and trying time. You may not know what to do or where to turn. If the person who passed, also known as the decedent, left behind assets, there are certain requirements that must be met in order to transfer those assets to the rightful recipients under the law. Those assets may or may not be required to go through the probate process in Tennessee. If you have questions about Tennessee probate, contact one of our Nashville probate attorneys.

Following the death of a loved one, one of the first things that should be done is a review of the decedent’s important documents. Many people may keep all of their essential documents together in a file or in a particular location. Reviewing these documents will help you to have a better picture as to discovering what types of assets or debts that the decedent may have had. An inspection of ownership documents of an asset can also enable you to determine whether or not an asset is a probate or a non-probate asset.

Also, looking through these documents may allow you to determine whether the decedent left behind a will or not. A will is used by the probate court to determine where any probate assets should be distributed. As mentioned above, there are both probate assets and non-probate assets. The probate courts in Tennessee will oversee the transfer of any probate assets.

Probate assets may include any type of property that was solely owned by the decedent that did not have a beneficiary designation. For instance, a probate asset may be a bank account that was solely owned by the decedent. However, non-probate assets are not overseen by the probate court. Non-probate assets may be transferred by way of contract or other designations that do not need the approval of the court. Non-probate assets may include any assets that were jointly owned with the decedent or any assets that had a beneficiary listed. For instance, a bank account may be a non-probate asset if it was jointly owned with another person or had a payable on death designation. Many people will attempt to avoid their assets having to go through probate by adding these designations.

Once you have determined whether or not you have any probate assets, there are options as to what type of Tennessee probate proceeding may be utilized to transfer that particular asset. Any probate assets totaling less than $50,000 that do not include real property may be transferred using Tennessee’s Small Estate Act. The probate courts use this Small Estate proceeding as an expedited form of probate for more modestly sized estates. One other expedited procedure to show the transfer of real property via will is probating the will for muniment of title. By probating the will for muniment of title, the court is able to probate the will (determine its validity) and show the chain of title to the property. The court order is then typically recorded with the register of deeds to evidence the chain of title. If the assets comprising the estate include real property and other probate assets, you likely will need to fully probate the estate. Although fully probating an estate can take more time, it ensures that the assets are transferred to the rightful recipient.

If you have any questions about potentially an estate, contact the Nashville probate lawyers at The Higgins Firm.

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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.