What is a Will?
At its most basic form, a Last Will and Testament is a document that disposes your property after your death. In other words, when a will is prepared it says: Who gets your stuff after you are gone. Who gets your house? Who gets your bank accounts? Who gets your furniture? Your pets? Your coin collection? All of these questions are answered through a Last Will and Testament. Every estate plan should have a will.
Do You Need a Will?
Will attorneys are asked this question sometimes and the short answer is yes, you do need a Last Will and Testament. There is no legal requirement an individual have a will in Tennessee, but it is a awful good idea to have one. Here's why:
Direct Where your Assets Go at Your Death
One of the primary reasons for having a Last Will and Testament is to direct where your property and assets go when you pass away. A recent study by the Gallup Poll found that 56% of Americans die without a will. That is an incredible statistic. What that means is that 56% of Americans do not have a decision in how their assets are distributed and their wishes are completely irrelevant. Want to prevent a relative from inheriting from you but do not have a will? Too bad. In Tennessee, if you die without a last will and testament the laws of the State of Tennessee ultimately control distribution of your property. These laws are called intestacy laws and you can learn more about them here. However, should you have a will, you have personal control over where your assets go at your death.
Nominate Who You Want to Have Custody of Your Children
Wills are especially important if you have minor children. If you have minor children, we strongly encourage you to nominate a close relative or friend to obtain custody over your children should you pass away. Should you die, your nominee would then petition the Court asking to be named the legal guardian of the children. Yet, be aware that just because you nominate someone you believe would be a good guardian for your children, that does not mean the Court will approve that person. For example, let's say you nominate your Uncle Bob as guardian for your child. Uncle Bob is a great guy, but has serious issues with alcohol and a fair amount of arrests on his record. Due to Uncle Bob's proclivities, the Court may balk at naming Uncle Bob as the guardian of the minor child. Nevertheless, generally the Court will most likely approve who you nominate should they be of good character.
Appoint Who You Want to Oversee Your Estate
If you die without a will you cannot control who will be appointed to manage your affairs once you are gone. Most of the time a family member or close friend will petition the Court to be appointed as administrator of your estate, but you have no say so over who that may be. If it is important for you to have someone you trust be appointed your personal representative once you pass away, you need a will. A will allows you to appoint an executor that you believe will follow your direction and carry your wishes out in an efficient manner.
What Happens If You Die Without A Will?
If you do not have a will at your death then you are said to have died "intestate". What that means is that your wishes as to how your assets will be divided are irrelevant and and the laws of the State of Tennessee control how your assets are distributed. So if you wanted to leaving everything to your favorite nephew and did not have a will, that probably would not happen if you had other, more immediate heirs such as children. Tennessee law has an order by which certain relatives stand to inherit before others. Spouses will always receive no less than one-third (1/3) the value of the estate if you had multiple children. If you had spouse and one child, they each will split your estate 50/50. Intestate succession can become very interesting and complex if the person who died had no immediate heirs. Sometimes the assets of the estate can be split among dozens of distantly related cousins should a whole branch of the family tree be gone.
Can You Get Away Without Making a Last Will and Testament?
Sometimes, yes, but we do not recommend it. If your estate is very simple and has no complexities or complicating factors, there are ways to plan your estate to avoid probate without necessitating a will. Naming beneficiaries on bank accounts, investment accounts, and retirement accounts are all things that you can do to minimize the need for a will. However, we do not recommend you forfeit having a will because you are ultimately giving up control of your affairs when you pass. Even if you only create a simple will, that is better than not having one.
Changing Your Will
Wills are easily amended or changed. It is very common for people to go through many versions of wills in their lifetime. Sometimes the wills are completely revoked and other times they are only amended. Time has a way of changing circumstances and you should consider updating your will every 5 years or so at a minimum.
It is not uncommon to lose a will. People move, they lose track of documents, it happens. Copies of wills can be probated under circumstances, but the requirements are stringent. To prevent your will from being lost, it is always a good idea to let someone know where you plan to keep your original will.
Do I Need a Will Attorney to Make a Will?
You do not need a will attorney in order to have a will, but we do not recommend that you do so. Outside of hiring a will attorney you have two options:
Buy or Download an Online Will Form. Many companies such as LegalZoom and RocketLawyer sell people online will forms. Additionally, a simple Google search for will forms can provide many basic wills. However, we can assure you that many will attorneys make a handsome living off of correcting these types of online will forms, whether purchased or downloaded.
Hand Write Your Will. Handwritten wills, or holographic wills, are not uncommon but they are generally very problematic. Most of the time, the person writing the will has no legal experience and simply makes a list of where he or she wants their assets to go. Moreover, Tennessee law is very strict in admitting handwritten wills into probate. The estate attorney handling the matter must meet these stringent requirements in order for the will to be admitted into probate.
If you are considering preparing a will, check out our page on the most important parts of writing a will. However, we strongly encourage you to meet with a will attorney to discuss your estate plan, even if you are unsure about hiring them. The insight and experience that a will attorney possesses will help guide you to make good decisions for you and your family.
How Much Does it Cost to Make a Will?
One of the unique features of hiring our firm is that we charge flat fees. We feel that our focus should be doing the best job we can for you without looking at the clock. Our commitment to you is to provide you the highest quality work at a price that you know at the outset.
Consult an Experienced Clarksville Will Attorney
If you are considering making a will, call Clarksville will attorney John Crow at 931-218-7800 to discuss how you would like to plan your estate. John exclusively practices in the areas of estate planning and probate in Clarksville and he has the knowledge and experience to skillfully create a will that meets all your goals. We would love to help you and we urge you to call us at our Clarksville office. Consultations are always free.