Tennessee Estate Law Blog

Consider this Estate Planning 101, an introduction to some of the most important steps to take in planning for the future. Most people are aware that they need a Last Will and Testament. But that is not the only essential document in an estate plan.

Below is a list of the 4 essential documents every estate plan needs. As you will see, estate planning is concerned with more than just what happens after you pass away. In fact, the first three documents are designed to assist you and your loved ones during your lifetime:

  • General Durable Power of Attorney – Who should handle your affairs if you are unable to do so? A General Durable Power of Attorney authorizes a person of your choosing to act on your behalf (as “attorney-in-fact”) in matters other than health care decisions while you are still living. This includes everything from paying your bills to filing your tax return. Because it offers a broad authorization to handle financial matters on your behalf, a Power of Attorney should name someone that is responsible, and that you trust completely.

Recent reports indicate that musical mega-star Prince may have passed away without a will or other estate planning in place. If that is true – a very big IF – his inaction will likely cost his estate millions of dollars in federal and state tax bills. In addition, contentious lawsuits seem certain to erupt over who are his rightful heirs, how to value his estate, and how to distribute and manage his complex assets.

Prince fought mightily to retain control over publishing rights and sound recordings. But now, if he is indeed without a will, he will have no say over how those interests will be preserved. The laws of the state of Minnesota will make those decisions for him.

Prince also closely guarded his privacy during his life. But now, assuming he did not protect his assets through effective estate planning, the nature and extent of his assets and their distribution among his heirs will play out very much in public.

What happens if you and your siblings inherit property from your parents, and you don’t agree on what to do with it? (what, siblings disagree?) Can you force the sale of the property?

In Tennessee, in many instances, the answer is yes, through an action called a partition.

This need often arises when a parent dies without a will, or their will divides their real estate, which might include a family home or the family farm, equally between children. In that case, each sibling would own the property as “tenants-in-common,” (also referred to as co-tenants) which means you each own an equal share of the entire property. All co-tenants have the right to use all of the property and share in any profits from it. When disagreements arise about how to use the property – say one sibling lives on the property and wants to stay, another wants to rent it out, and you want to sell it altogether – Tennessee law is clear that co-tenants have the right to partition real estate.

Do you store pictures online? Have a Facebook account? Keep documents in the Cloud? Or use online accounts to maintain certain aspects of your life? If so, you should be aware that earlier this month Tennessee Governor Bill Haslam signed into law a bill that could impact what happens to those digital assets after your death.

The Uniform Fiduciary Access to Digital Assets Act (UFADAA) is designed to make sure you control what happens to your digital property after you pass away. The law addresses concerns that online accounts containing assets of personal significance or even monetary value may be simply deleted upon a person’s death, or that loved ones will be refused access to digital property.

Oregon’s Karen Williams faced this dilemma while grieving the loss of her 22-year-old son, Loren in 2007. She revisted memories of his life by accessing his Facebook account, where he kept pictures and stories. When Facebook learned of his death, however, the company changed the password, denying her access, and sparking a lawsuit over control of his property. Ultimately, she won a court order, but as Associated Press reported, “she never received the full access she sought.” The account was subsequently deleted.

Country music legend Glen Campbell is engaged in a very public struggle with Alzheimer’s disease, a common form of dementia. Campbell announced his diagnosis in 2011 before embarking on a farewell tour with his family, which was documented in the feature film, “Glen Campbell: I’ll Be Me.” The film depicts in sometimes painful detail the impact of Alzheimer’s, not only on the person afflicted with the disease, but also on the loved ones faced with finding the right care and making decisions for someone no longer able to make decisions for himself.

The “Rhinestone Cowboy” is now in a long-term care facility with round-the-clock care.  After facing numerous health care issues and a legal challenge from two of his children from a previous marriage, his wife Kim is speaking out to help families dealing with the cruel disease, which affects about 6% of the over-65 population. “Estate planning is very important,” she said, according to a Lexington Herald-Leader report. “Advance health care directives are also very important.”

Kim Campbell is right. Planning ahead for health care crises can alleviate much of the anxiety for both the patient and his or her loved ones, and should be a standard step in every person’s estate planning process.

What if your spouse has passed away and you were left out of their Last Will and Testament?

Maybe the Will was prepared before you were married, or before you even met. Maybe they intentionally attempted to disinherit you. Do you have any options as a surviving spouse? In Tennessee, the answer is yes. Tennessee law protects the surviving spouse from being left out in the cold.

But it is important to secure those rights according to the timelines and procedures laid out in the law.

This is a common question from estate planning clients. Once a year, you should make a point of thinking through your family and life circumstances with an eye toward your estate planning goals and priorities. Major life changes involving you or your family often create the need to revisit your Will and other estate planning documents to make sure they effectively reflect your current intentions.

Here is a list of common life events that often indicate it is time to update your Will:

  • Your marital status changes –if you were single when you prepared your Will and then subsequently got married, you should update it to adequately provide for your spouse after your death. If you and your new spouse both brought children to the marriage, special attention is required to address how your plan can best provide for your blended family. A divorce also likely means your Will no longer reflects your goals and should be updated.

If you are a resident of Tennessee, the amount of state tax your estate will owe, as of January 1, 2016 is: zero. Tennessee’s inheritance tax (known in most states as an “estate tax”) phased out permanently at the start of 2016, which means for anyone who passed away on or after January 1, 2016, no estate tax will be due to the state of Tennessee.

This change is the result of a law passed by the Tennessee legislature in 2012 that gradually increased the inheritance tax exemption (the maximum amount of a taxable estate subject to the tax) until the 2016 repeal of the tax altogether, leaving only 14 states and the District of Columbia with estate taxes still on the books.

What a difference 4 years makes! In 2012, a $2 million Tennessee estate could expect to pay more than $80,000 in state taxes (between 5.5% and 9.5% of the taxable estate above a $1 million state exemption). In 2016, that same estate owes no state taxes in Tennessee.

According to multiple news reports, Robin Williams’ wife, Susan Williams, stated that she was forced into taking legal action against Robin Williams’ children concerning his estate. She told “Good Morning America” in an interview which aired recently that, “Two and a half weeks after Robin had left, I was still in shock, not back in our home. I was told that I might not be able to keep our wedding gifts. That, ‘In fact, while you’re out of the house, we need to come and take everything out, and eventually, once we’ve gone through it all, tell us which items are yours and we’ll decide whether or not that’s true.”

A press report stated that Robin Williams’ trust had laid down guidelines about what was to go to whom, much of the disagreement revolved around what counted as celebrity memorabilia and what should be considered personal keepsakes. Also at issue were the expenses involved in maintaining the couple’s Tiburon, California home. The comedian’s third wife also got emotional describing her reaction to “Good Morning America” about the dispute over an estate said to be worth $100 million.

Susan Williams said, I’ll never forget being on the phone with one of the trustees and saying, ‘What is this? I know Robin Williams is famous — he’s my husband. He’s my husband. If we’re talking that you guys think everything is memorabilia, then take me. He’s touched me. Where does this end?'”Legal representation for Robin Williams’ children told the L.A. Times that Cody, Zelda and Zachary had been “following both the letter and the spirit of Robin’s instructions” and couldn’t understand why Susan Williams was “challenging the estate plan he so carefully made to provide generously not only for them but for her as well.” The actor left much of his estate to his kids, whom he had with his first and second wives.

No one wants to think about leaving their kids and family behind when they pass away, however, if you have the best estate plan possible for your family, then you can make sure they will be well taken care of. When your kids are old enough to be on their own at college, it may be a good idea to update your estate plan to reflect these changes in your life. Here are some things to consider so you can make sure your estate plan is right for you and those you love. Also, once you have considered these things, you should speak to an estate planning lawyer at the Higgins Firm. We will answer any questions you may have and help you decide on the best options for you.

You may be wondering what will happen to all the money you have saved once you are gone. Perhaps you worry that your kids will spend all of it on things they don’t need or that they will stop pursuing an education or maybe that someone will take advantage of them to get the money they inherited. These are worries that many parents have. There are a few things to consider to keep your family safe and protected even if these or other things occur.

Consider creating a Trust for your Child