WILLS
A Last Will and Testament is an important legal document for anyone over eighteen years old. Yet many individuals tend to put off having their Will prepared. Thinking about death, of course, is not a pleasant experience, but we all have ideas about who should inherit our property, who will raise our children, and how can our estates be handled after our death with the least amount of cost and with the most ease possible. Unless these ideas are reduced to writing in a properly drawn Will, our intentions may never be realized. A married couple may assume that the survivor will inherit all from a deceased spouse, but that is not the case where there are children of the decedent.
Before someone purchases a car or a home, they will research the transaction carefully and make sure that what they expect is in writing. Yet an individual's Will is a deed to everything an individual owns or has a right to control. No one would buy a house without a deed, or purchase a car without a bill of sale. So why would someone die without a Will?
Common Questions
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- Why do I need a Will?
After death, the decedent's property has to go somewhere. You can let the State Legislature determine who gets your property by doing nothing. The State has already prepared a default Will for you. For instance, in Tennessee if you are married with children, your spouse does not inherit all of your property because your property would be divided among your spouse and your children according to various criteria. If you were single and did not have children then your property would go to your parents and siblings according to other State criteria. If you don't have any close family, then the cost of finding remote heirs would be quite high,or if no remote heirs could be found, your property would go to the State of Tennessee. But, by having your own Will, you can leave your property however you choose (subject to some limitations between spouses). You can leave property to specific remote heirs, charitable institutions, or anyone you choose.
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- I don’t know who to appoint guardian of my children.
Neither does a court. The court knows nothing personally about your children, your family or your individual wishes regarding their upbringing. Although a surviving natural parent is the preferred person to be appointed guardian, other family members may contest such appointments and urge a court to appoint someone else. If both parents are deceased, then there could be contest between the two families of the parents as to who will be guardian. You need to appoint someone who will be the new "parent" to your children. You should discuss this appointment with the person you intend to name guardian, since this is an important responsibility and you need their agreement and understanding as to how your children are to be raised.
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- If my children are minors, who controls their inheritance?
Children under eighteen years of age are minors in Tennessee and cannot have control of their inheritance. This control will reside in the Court appointed guardian named in your Will. The guardian cannot use any of the minor's funds without Court approval, and most submit an annual accounting to the Court of all income and expenses. When the children reach majority, that is age eighteen, they are entitled to their inheritance without any control or direction
When the inheritance is small, then the distribution at age eighteen is not a concern. But where an eighteen year old comes into an inheritance of, say, $100,000 or more, it may be wise to consider a trust to hold the funds until they are older and more financially mature. Under this arrangement, the parents would leave everything to each other, but upon the last to die, then leave the combined estates of the parents to a trust if the children are under a certain age. As the children reach the age you designated, then they get their inheritance. In the meantime, the trustee is directed to use the income from the trust for the children's health, maintenance and support. The trustee would be a family member you have confidence in to manage investments and discretion to distribute funds while they are under the designated age.
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- My spouse and I own everything jointly; do we still need Wills?
Generally, yes. You may think you own everything jointly, but what if you missed some assets? Moreover, how do want to handle disposition of your assets in the event you and your spouse die in a common accident? Furthermore, one spouse may die in an accident, and the other receive such brain damage that they are not competent to do a Will---then it's too late. State law sometimes provides that all your and your spouses’ assets go to the heirs of only one of the deceased spouses.
A husband and wife may want to own everything jointly as a kind of "poor man's Will." But that can be dangerous. Joint assets may cause unexpected adverse estate tax consequences. If a surviving spouse inherits everything, and the combined estate of the couple is more than the personal exemption, there will be inheritance taxes upon the death of the survivor. Moreover, the size of the combined estates may be such that the survivor can not give it away to children quickly enough to save on taxes.
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- Do my spouse and I need separate Wills, or can we have one?
Each spouse should have their own individual Will. Even if their disposition plan is the same, or similar, separate individual Wills leaves the survivor of the couple with the freedom to make changes to their Will in the future. In the unfortunate event a married couple have a joint Will, then upon the death of the first spouse the surviving spouse can never make any changes to their Will. Since circumstances may change over time, it is important to have the right to make changes as such changes dictate. A couple should not let themselves get locked into any particular disposition plan.
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- How do I leave specific items to beneficiaries?
You can leave specific items set forth in your Will to specific named beneficiaries. But, if you are not sure who should get what at the present time, you can make a list of personal items in a note to the personal representative requesting certain items go to certain people. This does not carry the force of law, but the personal representative will probably want to carry out your wishes, as will beneficiaries.
It is recommended that any listing of specific bequests in a Will be of such property that has considerable value, such as real property. If several small items of no or little monetary value are listed in a Will, there may be a change of mind in the future requiring a new Will. Moreover, you may give the items to beneficiaries prior to death, or they may be lost or stolen, or you may sell them. It took a long time for many people to come around to doing their Wills, so why do a will that requires constant change?
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- If I move to another state, do I have to get a new Will?
Not necessarily. Under the U.S. Constitution, each State has to recognize the law of every other State, and if your Will is valid in the State where you resided when it was drawn up, then it is valid wherever you move. However, you may wish to have your Will reviewed by an attorney in the new State to see if there are any peculiarities that might require a new Will. If the new state is a community property state vs. a common law state, there may be differences requiring special handling in a Will.
It is advisable to review your Will every few years to see if there are any changes that need to be made. This is particularly true when there are changes in the tax laws, birth of new children, etc. Moreover, it's a good idea to read your Will every so often to make sure it says what you think it says. Sometimes people, over time, begin to think that their Will says something other than what it does. Memory can be a dynamic thing, and if a change is thought about enough, the person may come to think it's done when in fact it isn't.
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- Can I make changes in my Will in the future?
Most of us change our minds about our assets and their disposition as time goes along---people change, circumstances change, etc. Since your Will does not take effect until you die, you can change it anytime as long as you are legally competent.
If there are major changes, you can have a completely new Will prepared. If the changes are minor, you can have a Codicil---a Codicil is an "amendment" to a Will. Codicils are not recommended for important changes in a Will, such as a change in beneficiary or guardian, since the survivors may find your Will, but not the Codicil. Or, a beneficiary that is disinherited in the Codicil finds the Will and Codicil, and then destroys the Codicil.
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- Where should I keep my Will? Should I show it to anyone?
There is no difficulty in retrieving a Will from a safe deposit box in Tennessee. The Personal Representative can have access to the bank vault to retrieve a Will, deeds to burial plots, and life insurance policies, all prior to probate. All other items cannot be removed until probate, and then a complete inventory of the box is made for the Court and the taxing authorities.
Wills are rarely stolen, and it is indeed rare that a home burns down. But, people generally can lose their Will because it was misplaced. We live in a transient society, and every time we move we re-arrange boxes and contents. We then ask ourselves, where did I put my Will? If your Will is in a bank safety deposit box, then your survivors can locate it easily and you will know where it is while you're living.
At Donald B. Roe, Attorney we keep client's Wills in our office safe if they don't have a bank safety deposit box and do not wish to obtain one. The Will can be retrieved at any time by the client, or by the Personal Representative upon the client's death.
There is no requirement or prohibition about showing or letting someone read your Will. Some individuals want their family to know of their Will and its contents so as to reduce conflicts after death. Others may be concerned about possible rifts if their Wills are divulged while living. It is a personal matter which only the client can decide. Of course the Will is shown to witnesses at the time of execution, but it is not read by anyone but the attorney until the client decides who should have access to it.
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