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Articles Posted in Wills

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.

You have probably been told before that a day signified a certain nationwide event like National Donut Day or National Hot Dog Day. Often these days are used to celebrate and bring awareness to certain areas in life. The same goes for estate planning. October 20-26 marks this year’s National Estate Planning Awareness Week. While National Estate Planning Awareness Week does not sound like as much fun as National Donut Day, it does seem to hold much more importance. With upwards of 120 million Americans who are lacking an up-to-date estate plan to protect themselves or their families in the event of untimely sickness, accidents, or even death, obviously this week emphasizes the value of having an updated estate plan in place.

So why is having an estate plan so important? An estate plan can ensure that your loved ones are provided for if you were to pass away or that a loved one is able to make a decision on your behalf if you were unable to do so. In a general sense, an estate plan is typically comprised of legal documents that designate your specific decisions to a number of choices thereby eliminating any potential uncertainty.

One of the most basic estate planning documents is a last will and testament. This document primarily directs where you would want your assets to pass in the event of your death. Without a will, state statutes will determine where your assets would pass upon your death. A will can also direct who should be appointed as a guardian for any minor children. A will can also direct who you want to act as the executor of your estate. It is important for adults of any age to have a last will and testament in place.

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.

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.

When thinking about what to leave to loved ones after you have passed away, you may first think of your bank account, car, or house. While many people choose to leave their tangible assets to specific individuals in a will after they have died, more and more people are choosing to leave behind their digital assets. Although many will not think of their digital assets when creating their estate plan, digital assets often can be very valuable. In addition, these non-tangible assets can also be harder to pass down to your loved ones due to their nature. Specifically, you cannot exactly hold or move your social media or email accounts like a painting or television. You often need to know certain information to access these assets. If you have a question about passing down your digital assets, contact the Nashville estate planning lawyers at The Higgins Firm.

Possessing digital assets is a growing trend that shows no signs of slowing down. Many people store their music, pictures, or other information online. Whether the assets contain actual monetary value or merely sentimental value, you as the owner have the ability to choose what should happen to those assets after you are gone. People may want to pass along their Facebook, Twitter, blog, or email accounts to loved ones. Other types of digital assets may include website domain names, online stored documents, online bank accounts, iTunes accounts, or anything similar. The choice to pass on any of these assets should be left up to you.

One of the best ways to pass on your virtual assets is through your will or estate plan. You can choose to specifically grant your heirs access to your digital assets through these legal documents. Designating a digital executor can allow this person to have access to these items. Although this will grant the individual legal authority for access, some user-service agreements and laws may restrict access. Unfortunately, some of these agreements and laws are behind the trend of passing on these digital assets.

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.

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.

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.

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

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.

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