As most of you know a Will is your stated desire as to what is to be done with your estate on your death.  You can make your Will about as simple, or as complex as you wish, and you can include messages to loved ones... or those you have always been pissed off at.  You can have your Will read for your family and friends in an assembled group at your lawyer's office (the way you've seen it in the movies).... or not.  You can leave some a percentage of your estate, or a set number of dollars, or specific personal property.  You can have all of your assets sold at auction and the proceeds put back into your estate and then divided, or instruct your executor to sell in through private sale.
 
    Your options in writing your Will are infinite.  You can specifically disinherit someone and leave them a token of one dollar, or of one cent... or leave them nothing whatsoever.

      Your Will does have to meet certain very clear cut requirements in order to be valid, and a surviving spouse does have the option of renouncing the Will and taking a share of your estate by virtue of marital status, giving them not less than one third of your net estate under Tennessee law.  But there are very few things that are prohibited, though there are certain things that a court would consider to violate public policy and which it would not give effect to (such as some unreasonable requirements or illegal conduct being required before an heir would take their share of your estate).

QUESTIONS AND ANSWERS ABOUT WILLS
         Because most people already have some understanding of what a Will is, the information here is offered in question and answer form.

        1. What happens if I die without a Will?  If you die without a Will, what you own (your "assets") in your name alone will be divided among your spouse, children, or other relatives according state law.  In Tennessee that's Tennessee's Intestate Succession Statute (T.C.A. 31-2-101 et seq), regardless of your wishes; if you are survived by a spouse but no children or other descendants, the surviving spouse gets everything; if you are survived by a spouse and one child survive, each would get half; if a spouse and two children survive, each would get one-third; if a spouse and more than two children survive, the spouse would get one-third and the children would divide the other two-thirds share equally; if a child dies before you but leaves his or her own children, those grandchildren (or great-grandchildren) take that child's share of your estate.  If you are unmarried, without children, and your parents survive you, your estate passes to them.  If your parents are not living, then to your siblings (and their heirs), and then to other more distant relatives; eventually,  if no family member is found, the estate passes to the State of Tennessee.  The court will appoint an administrator (generally a relative) for your estate to collect and distribute your assets, and will name a guardian for any minor children without considering what you would have wanted.

        2. What can a Will do for me?  In a Will you can decide who will receive your assets at your death (these are called your "beneficiaries").  You can name someone (called an "executor") to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify, and your Will is the only way you can allow the person administering your estate to avoid being required to post a bond -- even your spouse could not serve as the personal representative of your estate without posting a bond if you do not set this out in a Will.  You may nominate someone (called a "guardian") to raise your children who are under age 18.  You can set up Trusts that will be created on your death to manage assets for your children until they reach any age you might pick, and you can name the Trustee.  In the case of a large estate, a well drafted Will can significantly reduce estate taxes reducing what is left for your heirs, often this will be done through Trusts or a gifting plan during your lifetime, but the Will is an instrumental part of the overall plan.

        3. Does a Will avoid probate?  No.  With or without a Will, assets in your name alone usually go through the probate process.  The court's first job is to determine if your Will is valid. (Click here for an explanation of the probate process.)  There are ways to minimize the role of the Probate process, often effectively eliminating it entirely so all meaningful assets in your estate pass directly to those you intend to get them without the delay, expense, public records and invitation to family conflict that comes during the probate process.  Each of these methods have advantages and disadvantages.  (Click here for more on how to avoid probate.)

        4. What is jointly held property... and can I give away my share in my will?  If you jointly own a business or property with another person, whether you can give away your share depends on the kind of joint ownership you have.  It can either be an ownership where you and the other joint owners all indivisibly share ownership without any power to transfer your interest at any time without the approval of all other joint owners (in which case your interest generally will not transfer to your heirs), or it can be a joint ownership in which any of you can transfer your interest to anyone at any time -- much like shares of stock in a publicly traded corporation.

        5. Do all assets go through probate?  No.  Money in a joint tenancy bank account automatically belong to the other named owner without probate.  Assets placed in any Trust as part of your estate planning remain in the Trust for distribution as you previously directed in the Trust (technically, once you put it in the trust, it is no longer yours but is instead property belonging to your Trust).  If your spouse or child is on the deed to your house as a joint tenant, that property passes directly and automatically to him or her.   Life insurance and retirement plan benefits may pass directly to the named beneficiary.  A Will does not necessarily control how these types of "non-probate" assets pass at your death.

          6. Are there different kinds of Wills?  Yes.  There are handwritten Wills (called holographic Wills), typewritten Wills, attorney-prepared Wills, and in certain rare cases even spoken Wills.  (Spoken Wills are called nuncupative Wills and are recognized only in narrow circumstances.  A nuncupative Will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be declared to be his Will by the testator before two disinterested witnesses, and must be reduced to writing by or under the direction of one of the witnesses within thirty days after such declaration, and it must be submitted for probate within six months after the death of the testator, and it cannot dispose of personal property exceeding $1,000 in value, except that for anyone in active military duty during wartime the aggregate amount may be $10,000.  And a nuncupative will can not revoke or change an existing written Will.)  All of the mentioned Wills are equally valid if done precisely as the law requires.  But it's generally advisable to execute a Will only with an attorney's assistance, not only to make sure it does exactly what you want but also to make sure it meets all requirements of Tennessee law.  If it doesn't meet all of the requirements, the court will generally declare it void and refuse to give it any effect.  No matter what kind of will you use, keep in mind that you and your spouse should have separate wills.

        7. If I buy a Will form, can I add or cross out any words to change it?  No.  If you do, the Will may be invalid or the court may ignore the crossed out or added words.  You may only fill in the blanks... and even then a court may refuse to give it any effect.

        8. Can I change my Will?  Yes.  A Will is not effective until you die.  You can make and sign a new Will at any time, or you can change it by an amendment (called a codicil).  You can give away or sell your assets before your death.  Your Will only acts on what you own at death.... but to change it, you need to do so properly or you may end up invalidating the entire Will, effectively meaning you die without a Will, leaving it to the state decide how to distribute your estate under the rules of intestacy.  But before you amend your Will with a codicil, you might want to consider revising the entire thing and starting over.  Your will is probably on computer, stored in memory, and revising it so it's all in one document makes more sense than preparing a second document that has to be found and read at the same time.  Codicils (the seperate document amending a will) made sense once when lengthy Wills were written out in longhand, or produced by having a printer set type to print the Will, or even when they were produced by typewriter.  But when I can change a paragraph with just a couple of keystrokes... it makes sense to do that, revoking the old Will and executing the new one.

          9. Where should I keep my Will and who should I tell about it?  After you and the witnesses sign the Will (called "executing" the Will), you can keep your Will in your safe deposit box or other safe place, but the best thing to do with it might be to take it to the Probate Court Clerk's office in the county where you live and put it in a sealed envelope with your name written on it and leave it for safekeeping.  (This will cost $5.00 and only you or your designated agent can recover and open it, until your death when the Court will order the opening of the Will in the courtroom.  For more on this procedure of placing it with the Probate Court, click here to read the statute involved, TCA 32-1-112.)  You should tell your executor, trusted family members and trusted friend where your Will is kept, but other than the lawyer who writes the Will for you, no one needs to know what your Will says.  If you add a codicil to your Will, be sure to store it with the original of your Will of your Will.  The original is important, because it's much easier to prove the Will in probate if you have the original.  (Proving a copy instead of the original is a pain.)  If you do share copies of your will with anyone, make certain they are unsigned copies of the Will, including a note on each one describing where the original is filed or stored.  But make sure you only give your executor, family or friends unsigned (unexecuted) copies in case you want to revoke your Will by destroying it.  If you destroy your copy of the Will or revoke the Will expressly with a new Will and the new Will is not found or no one knows the earlier Will was destroyed, the copy of the executed Will may end up being probated and carried out... when it was the last thing you wanted done.

        10. When should I change my Will?  You should make and sign a new Will if you marry or divorce after you sign a Will.  Divorce or annulment automatically cancels all property stated to pass to a former husband or wife under this Will, and revokes the designation of a former spouse as executor, custodian, or guardian.  You should sign (execute) a new Will when you have more children, or if your spouse or a child dies.  You may want to change your Will if there is a large change in the value of your assets, or if you change your mind on the distribution of your estate.  And if you move from one state to another you should have your Will reviewed by an attorney in the new state to make sure it complies with the law of the new state.

        11.  Will my heirs have to pay estate taxes? Property you leave your spouse is not subject to federal estate tax. The rest of your estate also will not be taxed if it is worth less than $600,000, but anything beyond that which is not left to your spouse will be taxed by the federal government.

        12. What is an executor?  An "executor" is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs.  It may be a person or it may a qualified bank or trust company.

        13. Should I require a bond?  You may require that an executor post a "bond."  Generally a bond is advisable as a form of insurance to replace assets that may be mismanaged or stolen by the executor.  The cost of the bond is paid from the estate's assets.

        14. What is a guardian?  Do I need to designate one?  A guardian is a person designated to take care of an incompetent person, including minor children.  If you have children under age 18, you should nominate a guardian of their "persons" to raise them.

        15. What is a Trustee?  Do I need to designate one?  A Trustee is a person you name to administer a Trust, and if you create a Trust for the benefit of a minor child or for an adult child you are concerned might not use his or her share as you would like, then you need to name a Trustee.

       16. What is a Trust?  There are many kinds of Trusts, including Trusts created by Wills (called "Testamentary Trusts") and Trusts created during your lifetime and which you can change (called "Revocable Living Trusts") and Trusts created during your lifetime and which you can not change (called "Irrevocable Trusts").  Each of these Trusts are long-term arrangements where a manager (called a "Trustee") invests and manages assets for someone (called a "beneficiary") on the terms you specify.  Trusts are too complicated to be used in this statutory Will.  You should see a lawyer if you want to create a Trust.

        17. Should I ask people if they are willing to serve before I designate them as executor, guardian, or Trustee?  Yes.  Some people and banks and trust companies may not consent to serve, or may not be qualified to act.

        18. What happens if I make a gift in my Will to someone and they die before I do?  A person must survive you to take a gift under your Will, unless you state that you are giving it to them and their heirs, in which case it goes to their heirs if they die before you.  (So it is important how your Will addresses this issue.)  If they do not survive you and you have not given it to them and their heirs, then the gift fails and remains a part of the rest of your assets.

       19. Why does my Will have to go through probate?  The simple reason is because Tennessee law requires it.  The more complete explanation is that the law requires it in order to allow anyone with a later Will to bring it forward, and to allow a hearing for those believe you were not competent to execute the Will or that you were forced to sign it or that the Will is a forgery, and to also allow those with claims against your estate to be paid... including the tax man who stands very close to the head of the line of creditors and is never willing to give up an opportunity to make a claim for what someone else earned.

        20.  If I die without a Will, why can't my family simply tell the court what I wanted done and then get court approval for that distribution?  Well, if you've ever seen a family push and shove to feed at the trough of a dead relative even when there IS a Will, you've already answered your own question.  Testimony about what someone wanted is generally not considered credible.

        21. Who can make a Will?   Anyone of sound mind and at least eighteen (18) years old can legally make and execute (sign) a Will in Tennessee.

        22. What should be included in a Will?  While the devil is in the details, in general terms you need to name the Executor for your estate, set out any directions for specific bequests (gifts), naming exactly what each named beneficiary or your Will is to take, designate who is to get the remainder of your estate after the specific bequests, name alternates in case the beneficiaries you name die before you, nominate a guardian for any minor or incompetent children, address any issues unique to you, such as provisions for the continued operation of a business or for payment of estate taxes.

        23. How long is a Will valid?  A will is valid until you revoke it, most commonly by executing (signing) a new Will that replaces (supersedes) the earlier one, or through a written revocation, or by physical destruction, burning it or tearing it up.   Under Tennessee law, divorce also generally automatically at least partly revokes your Will, at least as to the divorced spouse, and one of the first legal issues to address after a divorce is to revise your Will, to make sure it still does what you want.  Getting married and having children also generally automatically revokes any Will that pre-dates the marriage.  (If you are married with a valid Will leaving little or nothing to your spouse, your spouse still has rights in your estate regardless of what you provide for in your Will.)

        24. How do I revoke my Will?  A Will is valid until you revoke it, generally by physical destruction, burning or tearing it up, or by signing a superseding will or a written revocation.  However, if you get divorced after signing a Will, the law in Tennessee considers the Will partially revoked as to that spouse. If you have a Will, then get married and have children the Will is revoked.

        25. Can I prepare my own Will without a lawyer?  Certainly.  This is not the same as saying it's adviseable, but it is certainly legal.  The law concerning Wills, estates, probate and taxes due at death, is quite complicated and it's generally best to have a lawyer help you.  Computer programs are available to help you draft a Will, and some of them actually do a pretty good job.  Attorneys who specialize in estate planning often use computer programs to help them draft the Wills they prepare (the software programs they use are often quite expensive, but do an excellent job of drafting a Will), but they also talk individually with the client and evaluate the overall situation before having the client execute the Will.  Attorneys can help avoid problems that might otherwise go unnoticed, and make sure that the Will is prepared and executed according to the frequently changing requirements of state  law. For example, in Tennessee, a formal Will must be witnessed  by two adult individuals who are not beneficiaries of the estate.  Also, the failure to mention certain heirs, such as a spouse or child in a Will, could cause a court to disregard the terms of the will and provide a distribution to that person as though  he or she had been accidentally forgotten when the Will was drafted.

       26. Will my estate pay more in taxes because of a Will?  It can if the Will is drafted poorly.  Most estates are too small for it to make any difference, and for large estates a well drafted Will can  reduce or eliminate the amount of estate tax due at your death.

       27. How much will a Will cost me?  The fee for drafting a Will is going to vary from lawyer to lawyer and also according to how complicated you want your Will to be.  But Wills are fairly inexpensive, generally costing less than the average person expects, and attorneys generally will not charge anything for you to come in to speak about what you would like for estate planning and let you know what they would charge to draft your Will.
 

BESIDES A WILL

In addition to a Will you should also consider having a Living Will and a Durable Power of Attorney for Health Care and possibly a general Durable Power of Attorney.  The Living Will is looked to for instructions when you cannot speak for yourself and you are in a terminal condition.  The Durable Power of Attorney for Health Care is used when you cannot speak for yourself but you have a chance of recovery.  A general Durable Power of Attorney designates a person to take care of your personal or business affairs when you are not able to.  All three of these are relatively inexpensive
 

SUGGESTIONS

Planning your final affairs is a very personal and individual matter.  You should decide for yourself the general goals you want to accomplish, then talk with your attorney to help you properly accomplish your goals.  In the case of a large or complex estate, you might also talk with your accountant and financial planner.

If you take these five steps you will save time, may well reduce your attorney's fee and will help make sure things are done the way you wish:

1. Inventory Your Assets

List in reasonable detail all of your real and personal property, insurance policies, annuities, and retirement plans, with your best assessment of their values.

2. Inventory Your Liabilities

List all debts and obligations, including principal amounts, creditors, and other essential terms.  Also include the addresses and account numbers to allow your executor to wrap up those matters quickly so the remainder of your estate can be distributed to your heirs.

3. Family Members and Other Important People

List those you would want as your executor, guardian, and trustee, as well as the names, birth dates, addresses and phone numbers (and Social Security numbers if possible) of all of your immediate relatives, and also the children of any immediate relatives, and anyone else you might want contacted on your death.  (Your "immediate relatives" are your children, your parents and your brothers and sisters.)  This is to make it easier to contact these people.

4. Decide What You Want to Accomplish

Determine and then write out your objectives, who you wish to receive your property and if you have minor children then who you would want to care for them.

5. Contact an Attorney

Take the lists in with you and review what you want to happen.  These steps will go a long way in speeding the process and assuring that your Will is drafted so that it does exactly what you want.

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