This office provides full services regarding wills and estates. Tennessee happens to be one of the few states where the probate process is simple, relatively short in length, and not terribly expensive. However, there are alternatives to the probate process which will be discussed further.
I. WILLS, POWERS OF ATTORNEY, LIVING WILLS, AND LIVING TRUSTS
A. Last Will and Testament – Many people choose to specifically direct how their estates and properties will be handled. As with most work that attorneys do, the more complicated a will is the more you will be charged for it. This office currently charges $250.00 for a simple will. A simple will is one that has few named beneficiaries and disposes of all property without regard to minor heirs. Many married couples do what we define as “mirror image wills” because they own all of the property jointly, have the same children, and want to have an understandable and easily managed probate process.
If you have minor children you can provide for a testamentary guardian who the law will recognize as a “parent” for all purposes and allow this person to raise your child and make decisions regarding health, education, etc. If you have minor children and pass away prior to their reaching their majority, it is essential that your will contain a testamentary trust for some competent individual or institution to be able to handle your financial and property affairs and to manage them for your children’s best interest until they reach their majority. You have many options about when to terminate the trust. In Tennessee people become legal adults at 18, but you may postpone the trust termination as long as you wish.
Every will must have a named person to be in charge of your estate. This has commonly been called an Executor in the past and in Tennessee we now call these Personal Representatives. These persons are given full authority under your will and by an order of the court to wind up your affairs and distribute your estate.
If one dies without a will the court, upon petition of an interested party which can include family members, creditors, or even close friends in some circumstances, will appoint someone to wind up the person’s affairs and distribute the property according to our laws. When one dies without a will it is called intestate. The Tennessee legislature has adopted a scheme of inheritance and directs who your properties go to if you do not have a will.
B. Non-Probate Estates – Many Tennesseans, especially married couples, can avoid probate altogether. Most married couples own all of their assets jointly and have full authority to utilize and dispose of any item owned as a married couple upon the death of the first spouse. If the couple owns real estate at the time of the first party’s death, we recommend that a release from the Bureau of TennCare be obtained (easily done) and that an affidavit of heirship be recorded in the Register of Deeds Office which will clear up title to the real estate for the surviving spouse. That way there will be no probate involved and the process is simple and inexpensive.
Until the end of 2015, in addition to the TennCare release for persons who die in the year 2015 or in prior years, we also have to obtain a release from the Tennessee Department of Revenue for any potential inheritance tax. For many years the threshold for Tennessee inheritance tax has been high. For 2015 it is $5,000,000.00 and disappears altogether in 2016. Very few people need to be concerned about the federal estate tax. When you meet with us if this appears to be an issue then we will discuss the matter at length.
C. Revocable Living Trusts – Since the probate process in Tennessee is so inexpensive and relatively simple compared to other states, most people choose to go through the ordinary probate process. Tennessee and federal law allows individuals to establish revocable living trusts in which they can place some or all of their assets, and which will contain provisions for a successor trustee to distribute your assets to your heirs or other persons who you feel are deserving. This way the probate process will be completely avoided as to the property contained in the revocable living trust, but the tax laws and TennCare release necessities still exist. Many of our clients who have used revocable living trusts have done so for very specific property such as long term family farms or vacation homes, but likewise other clients have done this just because they want to keep their estates private and not made a matter of public record. One of the few downsides to the probate process is that a lot of your business will be open to public scrutiny if someone wishes to pry into your affairs. Revocable living trusts are more expensive than wills because of the details that are needed to comply with the law and to give direction to the trustees as to how to handle the property.
D. Powers of Attorney and Living Wills – All adults should consider establishing a durable power of attorney which allows you to appoint an individual and/or institution in whom you have full trust and confidence to handle your financial affairs in as broad or limited fashion as you feel is necessary in the event you become incompetent or otherwise are unable to take care of a business matter that is imminent or pending. A durable power of attorney is directed at your property and funds. While we do put a medical care provision in our durable power of attorney, there are separate documents which you may want to execute for healthcare purposes.
This office provides, as a courtesy to anyone who we prepare a last will & testament or revocable living trust for, a document approved by Tennessee law and recognized by all local medical facilities which allows you to make choices concerning medical treatment, including end of life situations, and also allows you to appoint a trusted loved one or other person to make decisions for you should you become unable to give medical directions.
Durable powers of attorney and “living wills” or healthcare directives are more important to most individuals than the last will and testament. If one does not have a durable power of attorney and/or “living will” then the possibility of having a conservatorship or guardianship imposed upon you exists.