Estate Planning & Probate

Beth can professionally prepare your Last Will & Testament, Durable Power of Attorney, or Living Will. 

What Is a Will?

A will is a document provides the manner in which a person’s property will be distributed when he dies. A person who dies after writing will is said to have died testate. If someone dies without writing a will they have died intestate.

 Who may make a Will?

 In Tennessee, the maker of a will must be: at least 18 years old; 

of sound mind; and free from improper influences by other people.

How do I make a Will?

 A will must meet certain requirements set by the state to be considered valid.

In Tennessee, the following requirements must be met:

The will must be written.

The will must be signed by the maker. 

The will must be witnessed by two people in the manner required by law.

May I dispose of my property in any way I wish by making a Will?

 Almost but not quite. There are some limitations set by law to avoid placing hardships on the people who survived the deceased. For example a married person cannot completely exclude the other spouse from sharing in the estate. Beth can best explain all the limitations.

How do I know if I need to write a Will?

 Any amount of property which you own constitutes your estate. Generally the size of your estate and your family circumstances will determine whether you need a Will. And the estate does not have to be any particular size to justify a Will. If you have young children, or property which you would like to assure can be given to certain people, then you should consider writing a Will.

When do I need to consider a Will?

 It will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

Who may draft a will?

There is no requirement that a person consults a lawyer for drafting their own will. However, the proper drafting of a Will can be a delicate operation, and it is best to consult someone who has experience. Beth  will make sure that your Will is legal and your property Will be given to the people you intended. Beth can also help construct a Will so that your family saves money in administrating the estate and reduces their taxes.

Is a Will expensive?

Beth usually charges for Will preparation according to the time spent in preparing the Will and other estate documents. If you have a small estate and a simple plan for distributing your property then your Will may cost less than one for a large complex estate with several people receiving property.

May will be changed once it’s written?

 A person may change their Will as often as they desire. However the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting the person who drafted the Will.

How long is my Will “good”?

 A properly written and executed Will is “good” until it is changed or revoked. Writing a second Will usually written revokes your first Will. However if there’s a change in your estate or your family makeup, you may consider changing your existing Will by writing a new Will. For example to sell your house you may need to change your Will to reflect the change in your estate. last will and testament probate and estate administration wills and estates

I know that dying is not what people want to talk about. Making a Will is not what people want to do, but in Tennessee dying without a Will means that the state already has a Will for you.

Tennessee law sets forth who recovers when a person dies without a Will. These statutes designate the heirs at law and what percentage of the estate each person will receive. The person’s spouse and children are given first priority. If a person dies intestate without any children, the spouse recovers the entire estate. If the person left a spouse and children, the surviving spouse will receive either one-third of the entire estate or a child’s share of the estate, whichever is greater. In other words, the least that a surviving spouse with children could recover is one-third. If the decedent left only one child, the surviving spouse and child would be entitled to equal shares of the estate.

The distribution begins with the closer relationships and moves outward depending on if there are any living heirs. If the individual died without a spouse, children are given first priority with each child receiving an even share. If the person died without any children or spouse, the individual’s parents would recover in equal shares. If the person did not have any surviving parents, the estate is divided among the decedent’s siblings. From there it is divided among the decedent’s grandparents if there are no other remaining living heirs.

If an individual passes away with or without a Will, Beth can probate the estate.

Probate of a Will is the administration of an estate to insure that all of the property is disposed of properly. It is the Probate Judge's responsibility to make sure that all of the laws in Tennessee regarding the distribution of estates are followed.

The probate process and distribution to the heirs can be as short as 6 months and as long as two to four years depending upon the State laws regarding creditors claims, whether there is property to be sold, tax liabilities, disputes among heirs, or congestion in the State courts.

 STEPS IN PROBATE OF AN ESTATE

Petition filed.

Take immediate control of the estate.

Inventory of the estate within two months.

Bond, equal to the average capital value of property of the estate, plus one year’s estimated income from the estate.

Notice must be given to all players.

Letters of testamentary granted.

Notice to file claims must be published once a week for three weeks and individual notice given to anyone known to have a claim against the deceased.

Claims must be filed generally within six months.

Generally estate cannot be divided until all claims and expenses have been paid which is at least six months.

Court must approve attorney’s fees.

Beth is here to help you in your time of need. 

What Is a Conservator?

A person who is appointed by the court to manage the property of a minor or incapacitated person.

Who is an incapacitated person?

A person who is unable to manage property and business affairs because of:

Mental illness

Mental Deficiency

Physical Illness

Infirmities Accompanying Advanced Age

Chronic Use of Drugs

Chronic Intoxication

Confinement

Detention by Foreign Power

Disappearance

Who can serve as a conservator?

A family member of any interested person with with the priorities as follows:

Conservator appointed in another jurisdiction.

Person selected by incapacitated person.

Person designated by incapacitated persons power of attorney.

Spouse

Adult Child

Parent

relative with whom Ward has lived the last six months.

Nominee of person caring for incapacitated person.

When can a conservator be appointed?

A conservator may be appointed the incapacitated person:

is unable to manage property business affairs and

a. Has property that will be wasted without proper management; or

b. funds are needed to support the incapacitated person or one title to support from the incapacitated person.

What are the powers and duties of a conservator?

Without court authorization the conservator may:

invest and reinvest funds.

Retain assets.

Receive additions.

Acquire undivided interest.

Deposit funds and financial institutions. Acquire property.

Dispose of personal property.

Make repairs to buildings.

In releases of the five years.

Injure mineral leases.

Grant options up to one year.

Vote securities.

Pay assessments.

Sell or exercised stock options.

Deposit stocks and bonds.

Consent to reorganization, merger of business.

Insurer assets.

Bar to protect the estate.

Settle claims.

Pay reasonable and annual compensation to the conservator.

Pay taxes and expenses.

Allocate expenses to income.

Pay some for benefit of protected persons or his family.

Employ attorneys and archers.

Prosecute or defend claims.

Execute and deliver appropriate instruments.

Hold securities. (Court may limit powers of the conservator)

With prior court authorization the conservator may:

continue or participate in operating a business.

Demolish improvements.

Dispose of real estate.

So divide, dedicate land.

Leases greater than five years.

Grant an option more than one year.

Take on option to acquire property.

Am I required to have a lawyer?

The legal complexity of guardianships and conservatorships normally necessitates having an attorney does the probate judge cannot advise you of the wall provide you with forms.

What is the difference between a guardian and a conservator?

The Guardian looks after the person and their welfare while a conservator looks after their estate.

What are the steps followed in appoint a guardian or conservator for an adult?

Petition filed.

Appointment of a guardian ad litem.

Examination by physician.

Appointment of quartz representative.

Hearing.

Jury at hearing if demanded.

Bond for conservator.

Order granting petition.

Inventory of property for conservator.

Letters of guardianship and/or conservatorship.

Is a bond required?

Yes, a bond is required for conservatorships unless; the bond requirement is waived in a will or power of attorney.

Is an inventory required?

Each conservator must complete an inventory of the estate immediately file it with court within 90 days after the appointment.

Are accountings required?

Yes, a conservator must give an accounting to the court at least every three years. Court may order an accounting more frequently. Accounting is also required upon the resignation or removal of the conservator.

What is a guardian?

The parent of a minor or someone who has been appointed by the court to be the representative for the personal care of an individual.

What is a Ward?

It is the legal name for a minor or incapacitated adult for whom a guardian has been appointed.

Who can be a guardian for an adult?

Any qualified person may be appointed. However, the law establishes the following priorities:

person named in a durable power of attorney.

Spouse or spouses nominee.

Adult child.

Parent or parents nominee

relative with whom person has lived the prior six months.

Nominee or caretaker of person.

Who can be a guardian for a child?

The court may appoint any person who will be in the best interest of the minor. However, if the minor is 14 years old or older, the minor’s nominees must be appointed unless the appointment is contrary to the minor’s best interest.

Also, a parental nomination has priority.

Can a parent appoint a guardian?

Yes, in a will a parent may appoint a guardian for a minor child or for an unmarried incapacitated child.

Spouse appoint a guardian?

Yes, and will a person may appoint a guardian for his or her incapacitated spouse.

What are the powers of a guardian?

Must assume responsibilities of a parent regarding support, care and education.

Must become personally acquainted with Ward.

Must take reasonable care of Ward’s personal effects.

My supply available money for current needs or health, support, education and maintenance must conserve excess money.

Must conserve excess money.

Munson for the condition of the word to the court.

May receive limited funds for support of Ward.

May take custody of Ward and establish a home.

May compel payment of support.

May consent to medical care.

May consent to marriage or adoption.

May delegate certain responsibilities to award for the decision-making. (Court may limit power of guardianships)

When is guardianship end?

Upon death of Ward.

Upon resignation of the guardian.

Upon adoption of the minor.

Upon the marriage of the minor.

Upon the minor becoming an adult.

When Ward’s incapacity is terminated.