Areas of Practice » Wills FAQ

Frequently Asked Questions About Wills

Who makes a will?

1. Only with a will can you decide how your probate property will be distributed after you die. "Probate" property is generally that property in your name alone. If you die without a valid will (or "intestate," as the law terms it), your probate property is distributed according to a formula fixed by law. In other words, if you don't make a will, the law--not you--determines who gets your property. The law cannot and does not take into account your particular desires or any special circumstances which exist in your family.

2. You can name who you want to be the guardians of your minor children and their property.

3. A well-prepared will may reduce your estate taxes.

4. You may establish a trust in your will so your estate or some of it will be kept intact and provide income for your family or others.

5. You may choose the executor of your estate, provided, of course, that the person selected qualifies for the position under Tennessee law.

6. You can make gifts to charity, effective at or after your death.

What is a will?

A will is a written document meeting certain formal requirements established by Tennessee law, by which you may provide for disposition of your property after death.

What are the requirements of a will?

The laws of each state set the formal requirements for a valid will. In order for a will to be valid in Tennessee, the will must meet the formal requirements under Tennessee law. These are:

1. You, the maker of the will (called the "testator"), must be at least 18 years old.

2. You must be of sound mind when you sign your will.

3. Signing the will must be your free and voluntary act.

4. The will must be written. An oral ("nuncupative") will cannot convey real estate. Under certain conditions, an oral will can convey up to $1,000 of personal property, but it cannot change or revoke an existing written will.

5. Your will must be witnessed by two people unless entirely written in your own handwriting. To expedite probate of the will, the witnesses' signatures should be acknowledged before a notary public in the manner prescribed by law.

6. For your will to be valid, you must follow exactly the technical formalities required for its execution.

May I dispose of my property any way I wish?

Yes, but within certain guidelines. For example, a dissatisfied spouse can dissent from the deceased spouse's will and receive a percentage of the descendant's estate depending upon the length of marriage.

Can I disinherit my children?

Yes, and it isn't necessary to leave at least $1 to the child to do it. Children born after your will is signed will have certain rights in your estate, unless specifically excluded from the inheritance.

Can I change my will?

Yes . . . any time you want. However, a change must be made by either signing a new will or by signing an amendment or addition (called a "codicil") to your existing will. You can't change your will simply by writing the changes on your existing will.

How long is a will good?

A properly drawn and executed will is valid until changed or revoked. However, it's important to remember that changes in your life such as marriage, divorce, death of a spouse, birth of a child or an increase or decrease in your assets can affect the adequacy of your will or the way your estate should be distributed. It's a good practice to review your will often to be sure it reflects your desires.

Can a will affect property held jointly with a spouse?

Bank accounts and real estate held in joint tenancy with rights of survivorship usually pass to the survivor by law and not by the terms of the deceased joint tenant's will. However, there are many situations where it's not to your advantage to hold property in this manner. Check with a lawyer for details.

Does a will increase private expenses?

No. If there is property to be administered and taxes to be paid, or both, a will doesn't increase probate expenses. In fact, a properly drafted will frequently reduces the cost of administering an estate.

Who should write my will?

Drafting a will involves making legal decisions after a thorough review of your particular situation. Making these decisions requires professional judgment obtained by training and experience. In addition, signing a will must be done in strict accordance with the requirements of Tennessee law. Only a practicing lawyer can avoid the many pitfalls and advise the best course for your individual situation.

How much does a will cost?

An attorney's fee is usually based on his or her time and work involved, the difficulty of your problem and the attorney's experience and standing. Remember, fees may and should be discussed frankly with your attorney, preferably at your first meeting.