Tennessee Estate Law Blog

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• that the will had not been revoked and is lost or destroyed or cannot be found after a due and proper search.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.

The landscape of the American population is ever changing. In 1970, approximately one-third of Americans age 15 and older were single. In 2013, that number had risen to nearly one-half. With a growing population of single individuals, it is important to recognize the implications on estate planning. While much of the attention on estate planning may focus on those who are married and have families of their own, the reality is that estate planning can be even more important for those who are single. Those included within the singles population may include divorced individuals, those who have never married, and widowed individuals. If you have questions about how estate planning may affect you, contact the Nashville estate planning lawyers at The Higgins Firm.

Each state has enacted laws that determine where a person’s assets should pass without a will or trust in place. These laws, known as the laws of intestacy, are the default rules for asset transfer following a death. Under the laws of intestacy, assets end up passing to the closest relatives in equal shares without exception. Depending on your particular situation, this transfer may not be what you would desire. For example the laws of intestacy in Tennessee do not provide for the transfer of assets to close friends, more distant relatives, domestic partners, or charitable organization no matter how close you may have actually been to the person or organization. For this very reason, it is important to set forth your specific wishes in an estate planning document like a will.

In addition, it is equally as important for single people to explicitly appoint someone to handle financial and medical affairs in the event that he or she was unable to make decisions for him or herself. Often a power of attorney for finances or health care can be utilized to allocate decision making authority to another individual. With married people, that responsibility will naturally lie with the spouse. However, with a single person, that decision may lie potentially with a relative who may not know your desires or even a stranger appointed by the state. Without having a spouse or child to rely upon, choosing the right person to serve in that role can be crucial to ensuring that your needs are met for your finances and health care.

Similarly, designating a beneficiary on certain accounts like a retirement account can be very important for those who may be single. By listing a beneficiary on an account, the listed individual will be able to inherit the account without the need for probate. These beneficiary designations will supersede anything that is listed within a will. Otherwise, by listing the estate as the beneficiary of an account or simply leaving the beneficiary designation blank, the funds from the account will be considered a part of the estate and will be administered according to the laws of intestacy in the probate court.  Choosing a designated beneficiary can be a great way for single people to ensure that a portion of their assets are passed to the right person.

If you have questions regarding how your marital status or family situation may affect estate planning, contact the Tennessee estate planning attorneys at The Higgins Firm. Our Nashville based lawyers would be happy to answer your questions.

Life is full of change. Many of those life changes can reach much farther than people realize. While a large portion of the population has been affected by a divorce, often those individuals do not understand the impact that it may have on their estate planning documents. Exactly what happens to a last will and testament or power of attorney after there has been a divorce? It is important to understand what can happen if your documents are not updated. If you have questions how a major life change may affect your estate plan, contact the Nashville estate planning lawyers at The Higgins Firm.

One of the most basic estate planning documents is the last will and testament. What impact does a divorce have on a will in Tennessee? If a will is executed by an individual who later becomes divorced, Tennessee law eliminates the ability of the former spouse to recover under the will. Similarly, the divorce also revokes any power of appointment or nomination of the former spouse as executor, conservator, or guardian within the will. Should the individual desire to keep the former spouse as a beneficiary of the will or have the former spouse appointed, the will would expressly need to provide that the specific Tennessee statute does not apply. Only a divorce or annulment will result in the automatic revocation. A divorce will have the same effect preventing a former spouse from recovering from an individual who died intestate, or without a will. A formal separation of the spouses will not revoke the ability to recover under the will or under the laws of intestacy. If you have gone through a divorce or separation, it is important to update your will shortly thereafter to ensure that your assets pass to the individuals that you so desire.

However, a divorce will not automatically revoke a former spouse from recovering as a designated beneficiary. A beneficiary designation on any life insurance policy or other death benefits is considered to be a contract between the participant and the company or organization issuing the policy. Because these beneficiary designations are considered to be contractual, the designation can only be changed by complying with the terms of the contract, generally a written beneficiary designation form. In other words, a divorce or drafting a new will cannot automatically revoke a former spouse’s beneficiary designation. It is very important to change these designations shortly following a divorce.

One other area of estate planning potentially impacted by a divorce is with a power of attorney for health care or advance directive. A power of attorney for health care or advance medical directive will automatically revoke a former spouse’s authority as the “attorney-in-fact” under the document. Following a divorce, the former spouse no longer has the ability to make decisions regarding the health care of a former spouse. Despite the automatic revocation, it is important to have listed an alternate in place to serve in such a role or to draft a completely new document appointing someone to serve in that particular role.

In contrast, a financial power of attorney, which is a completely separate estate planning document, will not be automatically revoked upon divorce or annulment. The Tennessee statute that revokes a power of attorney for health care does not specifically revoke a financial power of attorney. For that reason, it is very important to update your financial power of attorney following a divorce.

If you have questions regarding your estate planning documents, contact the Tennessee estate planning attorneys at The Higgins Firm.

This time of year brings families together to enjoy food, fellowship, and maybe even a little football. Whether your Thanksgiving involves a small gathering of close friends or a large get-together with distant relatives, this is a time to be thankful for all of those loved ones in our lives. As you meet with your loved ones, it is a great opportunity to think about your estate plan. Being around your family may help you evaluate who would best serve in certain roles or who may need some extra protection in the future.

While your estate plan may not be your first concern, having an estate plan in place should be a priority. After all, having an estate plan in place can provide you with the peace of mind that your loved ones are cared for. You may be wondering what exactly makes up an estate plan? In its most basic form an estate plan is comprised of legal documents that explain where you want your assets to go or who you want to make decisions on your behalf if you are unable to do so.

A last will and testament is one of the most important parts of an estate plan. In its most basic form, a will documents where a person’s assets should pass upon death. However, a will does much more including the ability to set up a trust, nominate a trustee to manage the trust, nominate a guardian for any minor children, and nominate a potential executor of the estate.  Communicating these decisions to any family members can allow for a helpful discussion and can eliminate any surprises down the road.

Another important document that can comprise an estate plan is a power of attorney. A power of attorney allocates the ability or authority to act on another’s behalf. For instance, a power of attorney may enable someone else to handle your finances. This document can be drafted to provide a wide range of powers to another individual including everything from banking to deeding property. A power of attorney can also be drafted to become effective only during certain circumstances like the incapacity of the individual. When talking with your loved ones, you may want to consider who may best serve as power of attorney.

An advance health care directive is another important document that can comprise an estate plan. This directive provides what type of care that you may want in a given situation if you were unable to make those decisions regarding your health care. A living will is a type of advance health care directive. These documents can ensure that you are given the care that you so desire. Openly discussing these decisions can provide peace of mind to loved ones knowing that your wishes are met.

There are also a number of other estate planning documents that may be suited for you and your family depending on the particular situation. If you or your loved ones have questions about estate planning in Tennessee, contact The Higgins Firm. Our Nashville based estate planning attorneys would be happy to speak with you.

 

Recently, attorney Jim Higgins stopped by Nashville’s NewsChannel 5 Talk of the Town Extra to discuss some steps to take when meeting with a Tennessee probate attorney after a death. When a person passes away, you may not exactly know where to turn next. If you have been nominated as an executor of an estate, you understandably may feel overwhelmed with so much to do. Often an estate will need to go through the probate court to ensure that creditors are paid and assets are distributed. A Tennessee probate attorney can help you through the probate process. The video below discusses what steps should be taken when meeting with a Tennessee probate attorney after a death. If you have any further questions regarding the probate process in Tennessee, contact the Nashville probate lawyers at The Higgins Firm.