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In Our Judgement: In Law & In Life

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In Our Judgment

The official Frantz, McConnell, and Seymour, LLP blog.

Disinheritance in Tennessee

Disinheritance in Tennessee

An occasional question that comes up in drafting a will, is whether the person making a will can disinherit a child.  The simple answer is that in Tennessee, parents can disinherit a son or daughter.  No reason needs to be stated in the will.

Some think they must leave a child a dollar.  That is not correct.  Leaving someone a dollar can be troublesome for the executor.  Before probate can be closed, a receipt must be filed for each beneficiary.  A beneficiary who receives only $1.00 may not feel like cooperating and require extra filings and additional court proceedings to close the estate.

Caution should be exercised in disinheriting a child.  Disinheriting children often results in hard feelings and family discord.  The disinherited child may claim that the beneficiaries of the will used undue influence on the parent to receive a larger share of the estate.  This may result in an expensive will contest lawsuit and trial.

Although children may be disinherited, a spouse may not.  In Tennessee, a surviving spouse is entitled to an elective share of the estate, regardless of what the will provides.  The percentage of the spouse’s share depends on the length on marriage.

Disinheriting a child should be carefully discussed with an attorney when drafting a will.  There are numerous facts that should be taken into account, including how the language of the will should reflect how children are treated.

If you would like to speak to James Wagner on this or any other matter, he may be reached at (865) 546-9321.

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What are the Duties of a Conservator?

What are the Duties of a Conservator?

In Tennessee, a Court may appoint a Conservator for a person who lacks mental capacity to handle his / her own affairs.  But what exactly does a Conservator DO and what are the responsibilities of the job?

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Potential Legal Traps for Executors Distributing Firearms from an Estate

Potential Legal Traps for Executors Distributing Firearms from an Estate

In Tennessee, like most states, estates frequently include the decedent’s firearms. There are legal concerns for the executor1  concerning distributing the firearms to beneficiaries or heirs of an estate.  These can involve a beneficiary who is disqualified from possessing a firearm, or too young to take possession.  There may even be concerns about the legality of the firearm itself, see What Do You Do with Grandpa's Machine Gun.  

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BETTER SAFE THAN SORRY…ALWAYS A GOOD IDEA TO FILE FORM 706

BETTER SAFE THAN SORRY…ALWAYS A GOOD IDEA TO FILE FORM 706

No one has a crystal ball, but that does not mean we should not keep our eyes and ears open.  Given the drama surrounding the 2016 presidential election, there is one certainty…there could be some MAJOR changes in the federal estate tax regardless of who wins the election.  Mr. Trump’s plan proposes to nearly eliminate the federal estate tax (taxing only capital gains held on the date of death over $10 million) whereas Mrs. Clinton’s plan proposes to restore the federal estate tax to 2009 level (a $3.5 million exemption) with an increase in the tax rate.  I have been asked on multiple occasions how a change such as this would affect “Portability” under the 2013 American Taxpayer Relief Act. 

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MAKING A KILLING FOR AN INHERITANCE

MAKING A KILLING FOR AN INHERITANCE

What happens when a beneficiary kills the person from whom they would inherit property? 

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EVEN A PRINCE NEEDS A WILL

EVEN A PRINCE NEEDS A WILL

It has been widely reported that popular musician Prince died in late April without a Will or any estate planning documents--why should this matter to a Tennessee resident? The simple answer, if you die without a Will or other valid estate planning document, all important decisions are taken out of your hand, including:

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Revocation of a Will

Revocation of a Will

If you don’t like your Will, how do you revoke it? Tennessee law provides the answer. There are three ways to intentionally revoke a Will:

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DON’T GIVE IT ALL AWAY

On many occasions I hear from clients and potential clients that they have given certain assets to their children based on advice from someone with claimed experience/expertise in estate planning; on many occasions, the reasons given are to protect the parent’s assets and to save money.  But transferring assets to children is not that simple and has many risks you may not be aware of that can fail to protect the asset(s) and cost more money in the long run (saving a $1,000 legal bill but incurring $27,000+ more in income taxes down the road).

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MEDICAL DIRECTIVES for End of Life Decisions

While end of life decisions may be a topic most people want to avoid, having these conversations with your family members can actually do more good than harm. 

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Don’t Forget Your Beneficiary Designations

Some valuable pieces of an individual’s estate do not pass pursuant to their estate planning documents, and this portion of one’s overall Estate “Plan” is often overlooked.  These assets typically include:  Life Insurance proceeds, Retirement Plans Accounts, IRAs, and most all other accounts held at financial institutions.  This major portion of an individual’s estate plan is often overlooked and should be given careful consideration over and above just making sure you wrote someone’s name on the “designated beneficiary” line. 

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CHARITABLE REMAINDER TRUSTS: What are they & Why should you consider one?

In a previous blog on Revocable Living Trusts [REVOCABLE LIVING TRUSTS- Practical Management & Transfer of Assets, posted July 9, 2015], I mentioned the use of Irrevocable Trusts as a tool for certain tax planning, which included reference to a “Charitable Remainder Trust”.  This blog will discuss what a Charitable Remainder Trust is, how it’s created, and whether it is something you might or should consider putting into place as part of your estate plan.

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When Aunt Becky Had No Will …… the Rules of Intestate Succession in Tennessee

Who gets someone’s property when there is no will?

I have had several clients approach me about a loved one who has died without a will ….. clients with questions about who gets what property, how real estate is handled, and whether probate will be required to distribute the decedent’s estate.

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No Contest—Let's Avoid a Trip to Court...

A lot of clients have approached me after emotional battles in the various Probate Courts of Tennessee and asked how can they prevent their beneficiaries being subject to such Probate Court proceedings?  As with most legal questions, there is no simple answer.  My first recommendation is to always consider an “in terrorem” clause in their estate planning documents.  An “in terrorem” clause in its simplest form is a “no-contest” provision—if a beneficiary files any contest to your estate planning document (either Will or Trust), this clause automatically reduces their bequest to a nominal sum or eliminates them as a beneficiary altogether (treating them as if they predeceased you), just for contesting your estate plan (absent good faith and probable cause as described below).  

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Will Contests in Tennessee – What should you know?

You strongly suspect that your deceased family member’s will was obtained, by another family member or individual, through “dubious circumstances.”  How should you proceed?  What is the legal basis to challenge a probated will in Tennessee, and what is the process involved?

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REVOCABLE LIVING TRUSTS – Practical Management & Transfer of Assets

There are many reasons for considering the use of a Revocable Living Trust as part of your estate plan, which involves the creation and funding of a stand-alone trust agreement during your lifetime (a/k/a “inter vivos trust”) instead of creating trusts after your death by including trust provisions in your Will (a/k/a “testamentary trust”). 

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Don't Forget Income Tax Planning When Drafting Your Estate Plan

Because of Tennessee’s repeal of the State Gift Tax and the pending repeal of the State Inheritance Tax after January 1, 2016, you may have overlooked tax planning opportunities that exist in your current estate plan. 

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POWER OF ATTORNEY DOCUMENTS – Why Everyone Needs Them

Statistics show that we are living longer than previous generations and that we are more likely to experience a disabling mental or physical condition prior to our death. 

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Business Succession Planning—Don’t Let Tennessee Run Your Business!

According to Forbes Magazine in 2013, only 1/3 of family businesses successfully make the transition to the second generation.  Don’t let your family business join the 2/3’s that fail.  With a few easy steps, you can plan for a smooth and successful transition from one generation to the next.

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Hall’s Income Tax Exemption Amended – Law Passed May 18, 2015

The only income tax assessed in Tennessee is the Hall’s Income Tax, which is a 6% tax on earnings from stocks and bonds. 

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What Do You Do With Grandpa’s Machine Gun?

Duties of the personal representative or executor of an estate (I’ll use ‘executor’ for both) include gathering, protecting and distributing assets that belonged to the deceased.  In this part of the country, firearms are frequently part of the estate.  After the firearms are safely unloaded and securely stored, it’s time to decide what you have.

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