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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.

Many clients have called me and expressed a great dread of something which they have heard of, and seem to fear …. Probate.

Many clients have called me and expressed a great dread of something which they have heard of, and seem to fear …. Probate.

 

What is Probate? 

In Tennessee, probate is a process under state law by which a deceased person’s family (or beneficiaries) may present their loved one’s will to a local court to formally open an estate.  The court then oversees the gathering of the estate’s assets, the payment of any claims against or debts of the estate, and the distribution of the estate’s assets to the deceased person’s relatives, or beneficiaries, named in the will.

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Estate Planning: It’s for the Children (of all kinds)

Estate Planning: It’s for the Children (of all kinds)

In Tennessee, a person can leave his estate pretty much to whoever he wants.*  Of course, when a person dies without a will, the State of Tennessee provides for how property is divided.  See the blog article entitled, "When Aunt Becky Had No Will."   

If a person has no will, there are differences in how “children” are treated.  Under Tenn. Code Ann. §31-1-101(1), for purposes of inheritance, a “child” is a natural born or adopted child.  The statute specifically excludes a stepchild or foster child as a “child”.   

You can see how unfortunate problems can occur when there is no will.  A person can raise a stepchild or foster child from infancy and, unless the person makes provisions in their will, the stepchild or foster child will inherit nothing.  

A properly drafted will enables a person to distribute their estate as they want, without depending on the survivors to “do what’s right”.  A will can avoid family friction and hard feelings for years after a death.

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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 *The big exception is that you cannot completely disinherit a spouse by will.  Tenn. Code Ann. §31-4-101 et seq.

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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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