Articles Posted in Wills

Music legend Glen Campbell, who passed away last year after a lengthy and public bout with Alzheimer’s Disease, has been nominated posthumously for a Grammy award for his song, “Arkansas Farmboy.” But sadly he is in the news now for a very different reason: a family legal battle over his estate. A Nashville court hearing scheduled for February will address whether a 2006 Last Will and Testament left by Campbell is valid, in light of his mental capacity at the time, or whether a previous will is the lawful expression of his last wishes.

Sometimes, family disputes over a loved one’s estate plan are unavoidable. If you feel the need to leave out children, that can be especially controversial and hurtful. But with careful planning and open communication, the likelihood that your wishes will be clear and followed by the court can be increased, and the chances that your Will results in litigation can be minimized.

Here are five things you can do if you find yourself needing to leave family members, especially children, out of your will.

Procrastination is one of the biggest hurdles we all face in getting our estate planning done. Most Tennesseans know they need a will and other coordinated documents in place. We intend to get to it at some point, but feel too busy, or lack the pressing motivation, to contact an attorney and complete this essential life step. Some people even mistakenly believe they have no need for a will, maybe because they don’t own much, or because their “kids will get it anyway.”

If any of that sounds like you, this post is written with you in mind. Here are six (6) important reasons why you need a will (and 2 reasons why you shouldn’t wait).

  1. Be in control of naming your heirs. Without a will, state law determines which of your family members will receive your property. A recent probate client was left administering an estate to which the rightful heirs under Tennessee law were more than 25 cousins and 2nd cousins, many of whom did not even know the decedent. If you want your property to be chopped into dozens of shares and distributed to people you don’t know or maybe don’t like, then be sure not to have a will in place!

What can you do if a loved one passes away and you did not have a close relationship? Maybe your father is in a second marriage with children and you only spoke with him a few times a year. Or you are recently estranged from a family member or their close circle. You know that you may be entitled to an inheritance but are not sure. You don’t know if they had a will, or what it said if they did, or even what kind of assets they owned when they passed away. How do you find out?

We hear from lots of people who are in this situation due to second families or difficult family disputes that sadly went unresolved. Just because you were not in touch with a loved one toward the end of their life, or have a strong relationship with their spouse or children, does not mean you are not entitled to an inheritance in Tennessee.

There are several steps you can take, or work with a Tennessee attorney to make inquiries and conduct research on your behalf.

Most estate planning clients are either retired, elderly folks who are thinking about how to best leave their assets to their adult children and grandchildren, or are middle aged married couples making sure they have the right plan in place in case they pass away unexpectedly and leave minor children behind. Naming a guardian for the children and a trustee to administer a trust allows them to make those decisions, instead of a judge.

The age group least likely to have a will or estate plan in place? Millennials. And that makes sense. After all, young people have on average longer to live, may not yet have children, and fewer assets to worry about distributing. In fact, though, millennials need a regularly reviewed estate plan just as much if not more than those in other age groups. That’s because millennials are more likely than older generations to have unconventional family situations. They are more likely, for example, to be in committed relationships, including parenting relationships, without the legal protections afforded to married couples.

Under Tennessee law, if you pass away without a will, your individually held assets do not pass to your significant other unless you are married.

We were all shocked and saddened when film star Debbie Reynolds passed away just one day after her daughter, actress Carrie Fisher. Not only is it an extremely emotional time for the family, dealing with two deaths at the same time can complicate inheritance questions. For example, what if Ms. Fisher’s will left half of her estate to her mother, Ms. Reynolds, and the other half to her daughter, Billie Lourd. Since her mother died the next day, who should receive her share of Ms. Fisher’s estate? Should the mother’s will determine where it goes? Or should Ms. Fisher’s will? What if neither of them left a will?

This situation is not as uncommon as you might expect. Simultaneous or near-simultaneous deaths of family members can accompany any serious accident or natural disaster, and should be addressed during the will or trust planning process. Fortunately, the law in most states deals with this issue by requiring that an heir survive a decedent by so many days to be eligible for an inheritance. But a different provision in a will or trust would take priority over that rule.

In Tennessee, as in many states, unless a will, trust, or relevant contract specifies otherwise, an heir who dies within 120 hours of the decedent is deemed to have died first, for purposes of determining inheritance (See Tennessee’s Uniform Simultaneous Death Act).  In other words, for example, if Tennessee law applied, since Debbie Reynolds passed away less than 120 hours after her daughter, the mother’s estate would not include any inheritance from the daughter. Instead, Carrie Fisher’s will or trust would determine who receives her mother’s share of her estate.

It’s January! New Year’s resolutions are in full swing. We are collectively hitting the gym and committed to our diets (for now).

Here is another resolution you might want to consider: let 2017 be the year you (finally) get your estate plan in order. Most of my will clients tell me they have been intending to prepare their estate plan for months, even years. It’s just not the kind of thing that we often have time to put on the front burner.

In fact, surveys consistently show that more than half of American adults do not have a will or other estate plan in place. This is true even though statistics show approximately 100% of American adults will one day pass away.

I often hear from clients serious concerns about what to do with their home in their estate plan. Often at the top of their list is the desire to preserve a residence for one or more of their adult children.

In Tennessee, if you leave your home in your will to your children, they will own the property as tenants-in-common. In that case, nothing prohibits one of them from requiring the home to be sold, even if the others do not agree, and even if one of them lives there at the time. (see previous post on “partition actions” here)

There are reasonable options for addressing this worry in your Last Will and Testament.

If you reside in Tennessee and die without a will, the distribution of your estate is governed by state law. Tennessee Code (T.C.A. 31-2-104) sets out the rules for which family members would receive your property. Here’s the problem: those rules may or may not reflect what you would have wanted.

If you leave no descendants of your own but were married at the time of your death, then your estate will go to your surviving spouse.

However, if you pass away without a will and are married with children, your entire estate will not pass to your spouse as many clients often request in their will. Instead, your estate would be divided between your spouse and each of your children, with the spouse’s share not to drop below one-third (1/3) of the estate.

Most everyone should have a Last Will and Testament. Wills not only allow you (and not the state legislature) to determine how your assets will be distributed after your death, they also can help avoid costly and divisive family squabbles. For families with minor children, however, a will is especially important. There are two fundamental reasons why:

First, a Will is an appropriate place to nominate a guardian for your minor children in the event that both parents pass away. Parents who want to have a say in who will be appointed to raise their children if they are unable need to take affirmative steps to communicate their wishes.

There are several factors parents may want to consider in deciding whom to appoint as guardian:

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.
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