It's true: Many people believe they do not need a last will and testament. Although most people believe they need to have a will, they put it off for tomorrow. But what if tomorrow doesn't come? Let's say you are in a tragic accident and you are killed instantly. If you die without a will, what happens to your assets?
There are a couple of things that could happen, depending on who owns your property and who survives you. Here is an overview of what happens in Tennessee if you do not have a will when you die:
Dying Intestate: Tennessee's Involvement in Estate Property
When a person dies without a will, he or she dies intestate. Each state has its own specific intestacy laws. In Tennessee, the intestacy laws in the Tennessee Code determine how your probate estate will be divided if you die without a will (die intestate).
Tennessee intestacy laws divide a decedent's estate based on property ownership, as follows:
1. Exclusive Property - property exclusively owned by the decedent is the only property controlled by intestate succession laws
2. Joint Property - if a spouse, partner, or someone else jointly owns property with the decedent, then the property passes to the joint property owner through survivorship rights and the joint property is not included in intestate succession laws
3. Trust Property - property that was already placed in a trust with a named beneficiary is not included in intestate succession laws
Tennessee intestacy laws determine how intestate exclusive property is divided. Joint property and trust property are exempt from the probate process and pass directly to the joint owner or to the trust beneficiary, respectively.
Dying Intestate: Surviving Spouse and/or Descendants
Tennessee intestacy laws also determine how the decedent's exclusive property will be distributed to a surviving spouse or how the property will be divided among a surviving spouse and surviving dependents. There are three basic potential scenarios for what could happen:
- If you have a surviving spouse but you do not have children, your spouse will equally inherit your entire probate estate.
- If you have children but you do not have a surviving spouse, your children will equally inherit the entire probate estate, per stirpes. (Per stirpes means that if a descendant dies before you, his/her share of the probate estate will then pass to his/her heirs)
- If you have both a surviving spouse and descendants, your spouse receives either one-third of your probate estate or a child's equal share of a probate estate. The spouse receives whichever percentage is greater between the two. The children then equally inherit the remaining balance of the probate estate.
While envisioning the third scenario, consider the following examples:
Example 1: You die intestate and your estate is worth $300,000. You are survived by your spouse and one child. According to Tennessee's intestacy laws, your spouse should inherit the greater share of either one-third or a child's share of your estate. If your surviving spouse received one-third of your $300,000, he/she would receive $100,000, which is less than the child's share of $150,000. In this case, the child's share amount trumps the one-third amount, and the surviving spouse inherits $150,000.
Example 2: Your estate is worth $300,000. You are survived by your spouse and three children. In this case, your spouse inherits one-third of your estate, equaling $100,000., and each of your three children inherit approximately $66,666. Because the one-third portion of the estate is greater than the amount of one child's share, your spouse receives the greater amount of $100,000. Your three children split the remainder of the estate in equal parts.
Dying Intestate: No Surviving Spouse and/or Descendants
- If you die intestate and you do not have either a spouse or descendants, the State of Tennessee dictates that the subsequent relative to inherit your estate is any surviving parents. If your parents survive you, your estate is distributed to them in equal parts. If only one parent survives you, the surviving parent receives your estate in its entirety.
- If you die intestate and you have no surviving spouse, no descendants, and no surviving parents, then your estate will be divided into equal parts to your siblings. If a sibling predeceases you, then the deceased sibling's heirs will receive his/her share of your probate estate.
- If you die intestate with no surviving spouse, no descendants, no surviving parents, and you have no siblings, nieces, or nephews, then the State will look for closest surviving cousins.
- If no family members survive you, your probate estate returns to the State of Tennessee.