Wills And Probate Myths

Many people come up with all kinds of excuses to put off creating a Last Will and Testament either because (a) they do not have knowledge about the legal procedures or (b) they prefer not to think about their own mortality. Nonetheless, it is always wise to be prepared for the inevitable and create a will to ensure that your most valuable assets, such as a home or automobile, are distributed the way you want. The misconceptions surrounding wills and probate can make the estate planning and probate processes difficult to navigate. At Shepherd & Long, PC, our experienced team of Tennessee attorneys handles all aspects of estate planning, including writing wills and managing the affairs of deceased loved ones. For assistance with estate planning or probate in Tennessee, contact our office in Maryville by calling (865) 982-8060 today. A woman surrounded by books in an office holds up a volume with “PROBATE LAW” engraved above a set of scales on its front cover.

Debunking Common Will and Probate Myths

Creating a will may feel daunting for most people, but not having one because it seems complicated would be unwise. Dealing with probate can be even more overwhelming, especially for people who have just lost someone they care about. Although there is plenty of information online regarding wills and probate, not all of it is accurate. 

Myth #1: “I Do Not Own Much, so a Will Is Not Necessary.”

No matter what you might have heard (or read online) before, wills are not just for people who have accumulated wealth. There are several crucial reasons to have a will in place, and distributing your assets is just one of these. With a carefully planned and drafted will, you can designate guardians for minor children, choose caretakers for pets, name the executor of the estate, express funeral wishes, and more.

Myth #2: “The State Gets Everything if You Die Without a Will.”

There are countless reasons why estate planning documents, including wills, are important, but the fear of the state taking away your assets should not be one of them. If you pass away without a will (which, legally speaking, is known as dying “intestate”), intestate succession laws come into effect. Each state has its own rules regarding who inherits what in these cases. Generally, the decedent’s spouse and children have the primary right to inherit everything. 

Under the Tennessee Code §31-2-104, if an individual dies intestate and leaves behind a spouse, but no children, then the surviving spouse inherits the entire estate. If the decedent leaves behind children (called dying “with issue”), then the surviving spouse will receive either the same share as any of the children or one-third of the total value of the estate, with the greater option prevailing. If an individual dies intestate and leaves behind neither spouse nor issue, then the probate court for the county in which the deceased was a resident will distribute the estate among surviving relatives according to degree of kinship.

Myth #3: “I Do Not Need a Lawyer To Write a Will.”

Yes, it may be possible to create a will with no legal assistance, but you may still want to consider having a lawyer review the document to ensure its validity. Lawyers are well versed in the laws and procedures that govern wills. The experienced estate planning and probate attorneys with Shepherd & Long, PC can provide guidance in crafting a comprehensive will tailored to a client’s unique circumstances and make sure it meets all of the requirements for it to pass the probate court as valid. 

Myth #4: “Probating an Estate Takes Years.”

Contrary to popular belief, it will not take years for a typical estate to go through probate, though there may be exceptions to the general rule. Generally, the only notable delay is when creditors have the time to file claims. The length of this window varies from one state to another, but can generally range from a few months to a year. The Tennessee Probate Manual explains that, although there is no legal time limit for probating a written will, in most cases letters of testamentary or administration should not be issued once ten years have passed since the testator’s death. Due to the transitory nature of human memory, an oral will dictated to a witness must be submitted for probate within six months of the death date of the testator.

Myth #5: “I Already Have a Will, so There Is No Point in Thinking About It.”

Having a will is, undoubtedly, a good start. However, in order to ensure the document’s effectiveness for both the person creating the will (the testator) and their loved ones, it is crucial to keep it up to date. The testator’s circumstances, relationships with family members, and even wealth (e.g., acquiring new assets) can undergo changes many times over their lifetime. Generally, an individual may benefit from reviewing and updating the will every three to five years, or whenever significant life events, such as marriage, divorce, or the birth of children, occur.  

Frequently Asked Questions (FAQs) About Wills and Probate

If someone is considering creating a will or if they have recently lost a loved one and have been mentioned in the will or appointed by the court as the representative of the person’s estate, they might have many unanswered questions about what to do next. Here are some asked questions about wills and probate along with the answers.

1. “Can My Dad’s Girlfriend Contest His Will?”

Possibly. When an individual submits a Notice of Will Contest in Tennessee, they must state their legal “standing” to challenge the will. Generally, the individuals who have legal standing to contest a will are those who would inherit if the will were declared invalid. If the only known will is declared invalid, then the estate will be distributed according to intestacy laws, and in that case an unmarried partner would be unlikely to receive a portion of the estate, regardless of how close their personal relationship with the deceased may have been. 

However, in some cases there may be multiple versions of a will. If an earlier version of the will included an unmarried partner, then according to the Tennessee State Courts this individual may be able to claim legal standing to challenge the will because declaring the more recent will invalid would mean that the estate would be distributed according to the next most recent will, rather than according to intestacy laws.

2. “Can a Daughter-in-Law Inherit?”

In-laws do not have the right to inherit under intestacy laws, so if there is no will or the only known will is declared to be invalid, a daughter-in-law will not inherit any part of the estate. However, one of the benefits of creating a will is that testators have the legal right to name whomever they would like as beneficiaries. If a testator names his or her daughter-in-law as a beneficiary in a will that is found to be valid when submitted to the probate court, then she will receive whatever share of the estate the testator designated for her. 

3. “What Happens if One of the Beneficiaries of a Will Dies?”

Unfortunately, it sometimes happens that an individual named one of the beneficiaries in a valid will passes away before they can receive their share of the estate. When this happens, in the absence of any explicit provision in the will this beneficiary’s portion of assets will be transferred to their own beneficiaries or legal heirs. 

How this distribution takes place depends to some extent on whether the deceased beneficiary has left behind a valid will of their own, and if so, how its terms are set forth. If the deceased beneficiary was closely related to the person who made the will, and the beneficiary did not leave a valid will, then their share can typically be distributed among their children and/or spouse according to intestate succession laws. However, if the deceased beneficiary was not a family member, it may be necessary for the executor to interpret the will’s provisions. An experienced estate planning and probate attorney may be able to advise executors in these complex situations.

4. “Can an Executor Withhold Money From a Beneficiary?”

The main responsibility of an executor is to ensure that they carry out the wishes expressed by the deceased in their will. This involves transferring the assets to the beneficiaries according to the instructions stated in the will. In cases where there is a dispute regarding the will or if the executor suspects that the beneficiary is not acting in the interest of the deceased person’s estate, they may temporarily withhold funds as a way to safeguard the estate until the dispute is resolved. However, withholding funds from a beneficiary without a reason is illegal and can be seen as a breach of fiduciary duty

Contact an Experienced Estate Planning Attorney in Tennessee 

If writing provisions for a will or dealing with probate matters is a challenge, consider reaching out to an experienced attorney to seek help in drafting estate planning documents and navigating the Tennessee probate process. The attorneys with Shepherd & Long, PC help clients establish wills and other estate planning documents, and regularly guide individuals chosen as personal representatives through the probate process. Contact our Maryville office today by calling (865) 982-8060 to get answers to your questions about wills and probate, or to schedule a free personalized consultation to gain assistance with your own estate planning or probate process.