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One of the questions that I often get is, “How long does probate take in Tennessee?” Although many times it is very simple, the probate process can become very complicated depending on what type of assets or debts are within the estate.  As a result, an estate can remain open for a longer period of time depending on certain factors.

Fully probating an estate (not a small estate) takes a minimum of four months following the time of first publication. After an estate has been opened with the court, publication is made within a local newspaper notifying any potential creditors that the estate has been opened. During this four month period, creditors are then able to file a claim against the estate for the repayment of any debts that the decedent may have incurred. After this required four month period, an estate can be closed assuming that all debts have been paid and all of the necessary requirements have been met.

It is important to keep in mind that four months is the bare minimum amount of time that an estate will remain open. There is no guarantee that the estate will be closed at the end of the four month period. Often estates will remain open for a month or two longer depending on whether certain steps have been completed or not.

So what factors can cause the estate to remain open? No matter the size of an estate or how many creditors there are, each estate in Tennessee must meet around 8 to 10 requirements in order to be closed. Some of those requirements include receiving release forms from TennCare and the Tennessee Department of Revenue. Other necessary steps include filing signed forms from the personal representative or beneficiaries with the probate court.

However, other factors can often delay these steps from being taken. For instance, if the estate has a large number of creditors, each claim will have to be paid in full or settled before the estate can be closed. Also, if there are disagreements between the beneficiaries of the estate, the process can last longer because the court may have to settle the disagreements. In addition, if the estate has property that is located in another state, the estate can end up being open for longer. These are just a few of the factors that can lengthen the probate process.

As a result, it is a reasonable estimation that an estate will remain open on average for about six months. Obviously, some could be open for as little as four months while others could last upwards of nine months or more. Each estate is different. It is important to understand that although the probate process takes time, the court requires each step to enable its oversight of the estate. If you have questions about probating an estate in the Nashville or middle Tennessee area, contact the Nashville probate attorneys at The Higgins Firm. Our team of probate lawyers would be happy to answer any of your probate questions.

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Recently, I have received several inquiries regarding the validity of an out of state will or a will that was drafted outside of Tennessee. Many people want to know whether their will that was drafted in another state like Colorado or Florida has the same effect as a will drafted in Tennessee. It’s obviously a great question because there are a number of technicalities that can easily nullify the validity of a will. The ramifications of an invalid will can spell trouble for all of those involved. The good news is that most states have the same or very similar requirements for what are known as attested wills. Although there are different types of wills, attested wills are the most common and are typically typed up by an attorney or legal service and signed by the testator (the person whose will it is). If you have questions about your will, be sure to contact the Nashville wills attorneys at The Higgins Firm.

In Tennessee, there are general requirements for any type of will to be valid. These general requirements go to the qualifications of the testator. First, the testator must actually intend that the particular instrument or document operates as his or her will at the time of its signing. Also, the testator must also be over the age of 18, the age of majority in Tennessee. In addition, the testator must be “of sound mind,” which means the person must have the mental capacity to understand that he or she is executing a will and its effect.

Similar to the general requirements for a will, there are certain requirements specifically for the execution of a valid attested will. These requirements go to the execution or signing of the document. Attested wills must be signed by the testator or by another person at the testator’s direction and in his or her presence. Also, there must be two witnesses. The testator must sign the will (or acknowledge his or her previous signature or the will) in each of the witnesses’ presence. Further, the witnesses must sign in the testator’s presence.  The testator must also inform the witnesses that he or she is signing a will rather than another legal document. Finally, the witnesses must sign in the presence of each other.

If your attested will has met these requirements, it is likely that the will is indeed valid in Tennessee. Although, there may be some issues regarding any cited law within the document, Tennessee law will govern any will probated within Tennessee. For instance, if your will cites to a particular Indiana statute or any other state’s statute, that particular statute will not apply in a Tennessee court. Rather, Tennessee law will determine the issue.

If you have questions about the validity of your will or any other questions related to estate planning documents in Tennessee, we encourage you to contact the Nashville wills lawyers at The Higgins Firm. Our Nashville based team of estate planning attorneys would be happy to answer your questions.

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Recently, attorney Jim Higgins appeared on Nashville’s WSMV to talk about what happens when someone passes away without a will. Although there are a number of benefits to having a will in place, it is not the end of the world if you do not have one. The important difference when someone dies without a will in place is that the state determines where the decedent’s assets will go rather than the specific person before his or her passing. Tennessee state law has set forth where the assets should be distributed based solely upon family relationships rather than any specific need that a certain family may have. Obviously, people have the ability to determine where they want their assets to go, and a will serves that very purpose. However, in leaving such an important decision up to state statutes, there is not the flexibility to determine where you want any of your stuff to go after you’re gone. If you have any questions about any probate matters in Tennessee, be sure to contact the Nashville probate attorneys at The Higgins Firm.

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Working as a Tennessee estate and probate attorney, I get questions from people all of the time regarding some of the basic issues about my field. Many of the people that I talk with are often worried about specific legal technicalities in estate planning. There are a number of seemingly small actions that can have a large legal impact on a person’s legal documents and estate. I am happy to provide people with a basic understanding of the law and what to do to comply with it.

One of the questions I recently received was regarding the revocation of a will. This individual asked, “I have an old will. How do I revoke the will?” Fortunately, this is one of the easier questions that I get asked.

There are a number of ways to revoke a will, but one of the best ways is to create a new will. Often one of the first lines within a will includes a clause that revokes any existing wills or codicils. Upon executing a valid will, this clause thereby revokes any previous will that has already been executed. This can be important if you lose a will and the estate later becomes contested. By having a valid newer will that has revoked any previous wills, the probate court will obviously look to the most recent will in determining how to handle the person’s estate.

If there is a specific reason that you may have for not executing a new will, there are several other ways to simply revoke a will. One of the ways to revoke your will can be to destroy the original will. This can obviously be done in a number of ways including tearing up the will, burning it, or shredding the document. Another way to revoke a will is simply marking on the will so that one could objectively tell that someone sought to revoke the will. One could write “void” or “revoked” on the document. You can also use draft another written document stating your intention to revoke the will.

However, the most important thing to remember when revoking a will is the intent of the testator to actually revoke the will. In other words, it must be your actual intent to revoke your will. If you did not actually intend to revoke your will, the will can still have effect.  If you accidentally tore your will in half, the will would not be revoked because you did not intend to revoke your will. However, if you purposefully tore your will specifically intending to revoke your will, the will would obviously be revoked and no longer have legal effect.

The issue of intent can always be a little tricky after the fact. There are ways for the court to try to interpret intent, but it is always best for you as the testator to make your intentions clear. It is very hard for a court to determine if an individual sought to revoke his will if there is not clear evidence. For instance, how much of a will needs to be torn or missing for a court to determine that the testator intended to revoke his or her will?

If you have questions regarding a Tennessee probate or estate issue, contact The Higgins Firm. Our Tennessee probate attorneys would be happy to answer any questions that you may have.

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Having an estate plan in place is important for every individual. An estate plan is a set of legal documents that sets forth what you would want to happen to your assets if you were to die or become incapacitated. An estate plan can also establish a decision maker in the event that you are no longer able to make decisions for yourself. A Nashville estate planning attorney can help you draft the necessary documents that you need to protect your assets and provide for your loved ones.

There are a number of key steps involved to drafting your estate plan. The following will provide you with some of the most important steps:

1. Inventory Your Assets and Debts

Keeping a list of everything that you own and everything that you owe can be very helpful for anyone trying to help with any estate issues. The court will require any person seeking to probate an estate to definitely know what assets or debts that the person left. If a person passes away without a list of assets and debts, it can be very hard to determine where things are or where they should go. Whether the estate is comprised of real estate, accounts, stocks, a person may have assets spread out all over the place. Having an established list can make any process much quicker and smoother.

2. Provide for your Children

It is especially important to account for those who depend upon you. You will want to make sure that your children or any other dependents are taken care of. In your estate plan, you can appoint a guardian to care for your minor children in the event that you pass away. The guardian is able to make essential decisions on behalf of the children. Also, you likely will want to leave assets to be used for your children. A simple will can both appoint a guardian and set forth assets for your children in the event of your death.

3. Document your Wishes

One of the most important aspects about your estate plan is that it documents your wishes. You are free to do whatever you want with your estate plan. Without having certain estate planning documents in place, any decisions would be left up to other people. Specifically, if you die without a will, the state sets forth where your assets are to be distributed. Similarly, if you are incapacitated, any medical decisions on your behalf could be left up to someone else. You obviously may not want someone else making such a large decision without your input. For that very reason it is important to have an estate plan in place to document your wishes.

4. Appointing a Fiduciary

Another important step in creating an estate plan is appointing a fiduciary who would handle your affairs if you were ever unable to do so. A fiduciary is a person who is granted authority to handle or control a person’s assets. This may include appointing someone as an executor to handle your estate for any probate proceedings. Also this can include appointing someone to serve as Power of Attorney for you. Appointing a person Power of Attorney grants that individual authority to conduct business, pursue a lawsuit, contract, or any other legal matter. This can be helpful if a person becomes incapacitated. Appointing someone you trust is always important in choosing a potential fiduciary.

If you have questions about drafting an estate plan, contact the Nashville estate planning attorneys at The Higgins Firm. We would be happy to help.

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You may or may not have a will in place. In fact, a large portion of the population does not even have a will. Although it is always best to have a will in place for a number of reasons, Tennessee law sets forth where a person’s assets are to be distributed if he or she dies without a will. The legal term for the person who died is the “decedent” while the term for dying without a will is known as dying “intestate.” Accordingly, the laws of intestacy set forth how an individual’s estate, or more simply put things, will be divided upon his or her death. This determination is based strictly on familial relationships. Obviously, not every family situation would be best suited by a distribution of assets based upon the law.

Under the Tennessee laws of intestacy, the statutes set forth which relatives can recover and exactly how much they receive. Obviously, if the decedent had a spouse and/or children, they are given priority.  If a decedent left a spouse without any children, the spouse is to receive the entire estate. If the decedent left a spouse and children, the surviving spouse will receive either one-third of the entire estate or a child’s share of the estate, whichever one is bigger. In other words, the smallest portion of the estate that the surviving spouse could recover would be one-third. If the decedent left only one child, the surviving spouse and child would split the estate with each receiving one-half.

If the decedent did not leave a surviving spouse, priority of the distribution of the decedent’s assets is given as follows. First priority is given to any children with each child to be given an equal share of the entire estate. However, if there are no surviving children of the decedent, the parents of the decedent are to recover in equal shares of the entire estate. If the decedent does not have any surviving parents, the estate is divided up between the decedent’s siblings or the siblings’ children if the sibling is no longer living. If the decedent does not have any surviving siblings or children of the surviving siblings, the estate is divided among the decedent’s grandparents.

In a nutshell, the distribution of any assets is based on the familial relationship with the decedent with those within the immediate family having higher priority. It goes without saying that the laws of intestacy attempt to distribute an estate evenly among those who were closely related to the decedent. While this may work for some families, it obviously does not work best for all families.

The intestacy laws do not account for the specific wishes of the decedent like a last will and testament can. The laws of intestacy do not account for special family situations that may call for a family member to receive more or less than another family member. The laws of intestacy do not account for anyone other than close family members. Similarly, the laws of intestacy account for the distribution of a person’s estate in even portions. However, it can often be difficult to determine how to divide personal property evenly. You cannot divide a car or a tractor three ways. For these reasons, it is important to have a will in place setting forth your wishes for the distribution of your assets after your passing. If you have questions about the laws of intestacy or drafting a will, be sure to contact the Nashville wills lawyers at The Higgins Firm.

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Working as a Tennessee probate attorney, I get calls every day from people asking whether or not their loved one’s estate will have to go through probate court. Probate court is the court that oversees the payment of any debts and the transferring of a person’s assets after a person’s death. Like so many things in the legal field, determining whether an estate needs to be probated depends on a number of factors. Each person’s estate is different and is comprised of different types of assets. Thankfully Tennessee offers different options for those estates of varying sizes and types.

Only Certain Assets Are Probate Assets

Only certain assets are required to go through some type of probate administration. Generally, only those assets that the decedent had in his or her name alone are required to go through some probate administration. If the asset has a listed beneficiary, is owned jointly with another person, or has a transferrable on death designation, the asset is not required to go through probate court as it transfers immediately upon a person’s death.

Small Estate Administration

Tennessee offers a specific probate option for those estates of a more modest size. Known as a small estate administration, this option is only for those estates comprised of personal property valued at less than $25,000. This option cannot be used for an estate that includes any real property (also known as real estate). The small estate procedure is begun when the affiant (the person nominated in a will or a competent adult heir if there is no will) files a small estate affidavit with the court in the county where the decedent last resided. The affidavit includes information regarding the decedent and the assets that he or she left. Upon filing the affidavit and court approval, the court will issue certified copies to the affiant. The affiant can then use the certified affidavit to pay off any debts and transfer the assets. There are a number of benefits to a small estate administration including it being a much shorter and cheaper process.

Muniment of Title

Tennessee offers this option for the limited purpose of establishing a muniment of title to real estate. In other words this process allows an individual to file a will with the court to determine only the ownership of property. When probating a will for muniment of title, no other assets other than the real estate can be transferred. The other requirement is that the decedent must have left a valid will. Upon determining that the will is valid, the court then issues an order verifying the validity of the will and the transfer of property. This is obviously a more limited option, but it can be very useful for those only looking to transfer ownership of real property. It is an expedited process and can be cheaper than other options.

Fully Probating an Estate

If you have probate assets that are of greater value than $25,000 or if you have real property and any other probate assets, then fully probating the estate will be the option for you. Although probate has gotten a bad reputation from some, it does offer the protection of the court overseen process. Fully probating an estate can end up taking more time and costing more money but the court overseen process can ensure that the assets are distributed accordingly.

If you have any further questions about any Tennessee probate issues, contact the Nashville probate lawyers at The Higgins Firm.

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At the Higgins Firm, our team of probate attorneys is asked a number of questions every day from potential clients. And like many lawyers, the response that we usually give to so many of those questions is, “It depends.” One of those many questions that we often hear is, “Is it true that the state of Tennessee can end up recovering from someone’s estate?” Again, we have to respond with, “It depends.”

There is only a limited set of circumstances in which the state can recover from a decedent’s estate. Under Tennessee law, the property of a person who dies is paid to the state only when there are no other living beneficiaries under a will or there are no other living relatives if someone dies without a will. Essentially, if you do not have a will and you do not have any close relatives, then the state will end up recovering from your estate. Tennessee state law does not have any intestate (dying without a will) provisions for those who are not related. Obviously, there are not many people who would ever voluntarily choose to leave their estate to the state’s treasury.

However, there is an obvious and easy way to prevent this possibility from ever happening, drafting a will. By drafting a will you are able to avoid the worst case scenario where the state would recover from your estate. In drafting a will, you are able to determine specifically who you want to recover your assets after you have passed. You are able to leave your assets to close friends or even a charity.

If you need to draft your will, be sure to contact the Nashville wills lawyers at The Higgins Firm. Our team of attorneys would be glad to sit down with you and help you draft a will that can fit your needs.

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Recently attorney Jim Higgins stopped by WSMV’s Better Nashville to discuss essential documents that every family should resolve to have this year. Those essential documents include a last will and testament, a power of attorney, and a living will. There are any number of reasons why you may put off these drafting legal documents. However, these legal documents are not expensive, and they provide your family the protection that they deserve. You can watch the interview with attorney Jim Higgins below. If you have any questions about a will, power of attorney, or living will for your family, be sure to contact The Higgins Firm today. One of our estate lawyers would be happy to provide you with any answers.

 

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Now that we have entered 2014, you may or may not still be keeping your New Year’s resolutions. Hopefully, your resolutions are going strong and you have developed great habits throughout your life. However, if you have already slipped back into the habit of eating a little more junk food than you planned on doing, that does not mean that you should give up on all of your plans for this year. Similarly, you should resolve to review your estate planning documents. There are a number of reasons why you should periodically review your estate planning documents. Doing so can make sure that you are set for 2014 and beyond.

Reviewing Your Will Following Major Life Changes

It is always important to review your will following any of your major life changes. Whether you recently had a child, got married, or lost a loved one, each of these major life events can impact your will. As a result, you should review your will for any potential updates that need to be made.  If you’ve recently had or adopted a child, you should update your will. Similarly, if you have gotten married, you will want to add your spouse to your will.

When reviewing your will, you should also make sure that anyone listed in your will has not undergone a major life change. If you have listed an individual as your executor or personal representative and that person is no longer able to perform those duties due to whatever reason, you should update your will to ensure that a new executor is listed. Reviewing your will periodically for any potential changes is a great habit to develop.

Review Your Appointment of a Health Care Agent and Living Will

Both an Appointment of a Health Care Agent and a Living Will are essential estate planning documents that should be reviewed periodically. An Appointment of a Health Care Agent designates an individual who can make decisions on your behalf if you were ever incapacitated due to illness, accident, etc. You want to make sure that the person you have listed is willing and capable to serve in this role.

A Living Will is a document that sets forth your wishes for any potential end of life care. There are a number of situations in which you may want actions to either be taken or not be taken. For example, you may choose to have life support withheld due to your condition. However, if you ever have a change of heart as to what type of care that you may want, it is very important that you update your document accordingly. For those very reasons, it is critical that you periodically review your Appointment of a Health Care Agent and Living Will.

Review Any Beneficiary Designations

Although you may have reviewed and updated all of your estate planning documents, it is equally important to review any beneficiary designations that you may have for any accounts. These beneficiary designations will take precedent over anything otherwise designated in your will. When you have a listed beneficiary, that particular asset will transfer ownership upon a person’s death. This transfer occurs outside any probate court proceeding. Reviewing any listed beneficiaries is an important step often overlooked.

If you have questions about any other estate planning tips, be sure to contact our team of Nashville estate planning lawyers. At The Higgins Firm, our Tennessee wills attorneys would be happy to answer any of the questions that you may have.