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Nashville Estate Administration Law Blog

4 ways to avoid the probate process

In a perfect world, we would pass away and the loved ones named in our will would instantly receive the assets we've bestowed upon them. However, because numerous disagreements can arise during the estate distribution process -- and because creditors get a chance to lay their claims upon the state prior to distribution -- an estate needs to go through probate before its assets can be distributed.

Probate takes time, money and it can be stressful for heirs to navigate. For this reason, many Tennessee residents employ some of the following four probate-avoidance strategies in their estate plans:

  • Joint property ownership: By naming your heir as a joint tenant on an asset, your heir will be a co-owner of the property. As such, when you pass away, your heir will simply assume complete ownership of the property without the need for the probate process.
  • Death beneficiaries: Most insurance and financial accounts will have a beneficiary designation. When you complete the beneficiary designation, the named person can receive the assets upon your death without probate.
  • Revocable living trusts: When surrendering your assets to the ownership of a trust, you can name your heir as a beneficiary the trust. Legally, you no longer own these assets -- even though you can dismantle the trust at any time. As such, the trust assets will go directly to the beneficiary and bypass probate.
  • Gifting your assets: By giving away your assets before you die, you can also transfer ownership without the need for probate.

Family tries to secure 'hermit' uncle's $1.6 million estate

A retired factory worker from the Milwaukee area died after developing advanced dementia at the age of 92. Before his health began to fail, however, the man went to a financial advisor in Mequon to get help with a very conservative retirement investment. During the last several years of his life, he ended up giving power of attorney for medical and health issues to his investment advisor -- who he also made the beneficiary of his two annuities and his estate valued at approximately $1.6 million.

The elderly man, who is said to have lived like a hermit, did not leave anything to his nieces and nephews who number approximately a dozen. Rather, all of his estate and affairs were left to the care of his investment advisor. After the man passed away, the advisor arranged for the 92-year-old man's private funeral and cremation. Family members were not allowed to attend the services.

What are the duties of the executor during probate?

Most estate planners in Tennessee will want to avoid probate. However, there are many situations when probate avoidance strategies aren't practical; or, it's simply too late to avoid probate and the owner of the estate is already deceased. Regardless of the situation, you might be curious who actually handles the probate process, which -- depending on the complexity of the estate -- could be a difficult process to navigate for the average Davidson residence.

In cases where the decedent has drafted a last will and testament, the executor of the estate will manage the probate proceedings. The executor will have been named inside the will by the owner of the estate. The executor will oversee the entire probate process. If no executor has been named, then the probate court will appoint an estate administrator. This person will usually be a relative or the heir who stands to inherit the most from the estate.

How do I make sure a will is valid?

There have been many cases in which a Tennessee will was contested and rendered invalid by family members and heirs after a loved one dies. As such, making sure your last will and testament is valid is essential to having your wishes followed after you're gone.

In order to increase the chances of your will holding up in court against a will contest, you'll want to pay attention to the following details that make a will valid:

  • When you drafted your will, you were 18 years of age or older, lawfully married or serving in the U.S. military.
  • You were of sound mind when you made your will and you understood the nature and extent of your estate, and that in drafting your will you were indicating how and to whom your assets will be distributed.
  • You intended for the document to serve as your last will and testament at the time you signed it.
  • Your drafting of the will was voluntary and you were not coerced, or it did not appear that you could have been coerced, at the time you created the document.
  • You properly disposed of your property in the will. This means that you have listed the various assets and items pertaining to your estate and indicated who will receive what among your family and friends.
  • You signed and dated the will before at least two parties, and these witnessing parties did not benefit from your will.

The first 3 steps in a will contest

You probably never thought you'd need to contest your mother's will. However, you recently discovered that someone coerced her into sign a new will only days before her death. Now, you're trying to learn about your options. You might even be asking: "Is possible to invalidate the second will and revert to the original?"

It certainly is possible to invalidate a will in some circumstances. However, in order to be successful, you'll need to carry out the following first steps:

  • Find out where you stand: A will contest won't be possible in every circumstance. In most cases, you'll need to be an heir named in a previous or current will, or you'll need to have standing as an heir under state intestacy laws.
  • Figure out the timing: Your ability to file a will contest shall be subject to time constraints. Be sure to understand when the deadline is so you can file your contest appropriately.
  • Identify your grounds: You need to have a valid reason to contest the will. Was it because the testator didn't sign the will properly? Was it because the testator didn't have the mental capacity to sign? Was it because the testator was influenced or coerced? Or, was the will a fraud?

Can an estate representative get paid?

Serving as the executor of an estate, personal representative or the estate administrator can involve a lot of time, work and dedication. In fact, the duties could be so overwhelming in the case of a large and complicated estate that you don't have time to do anything else -- like your job. If you are managing an estate like this, you can have the estate pay you for your services.

In the case of most complicated estates, the last will and testament will sometimes provide guidance regarding how the personal representative can receive compensation for his or her services. Sometimes, the fees will be limited by the last will and testament. Other wills may simply say that the representative should receive reasonable compensation. Rather than providing a fee, the estate might award a specific bequest to the representative. If nothing is mentioned in the will or no will was made, the payment to the personal representative will be governed by state law.

Estate tax planning: What happens to inheritances from overseas?

The world is getting smaller, and the borders between countries are becoming more porous than ever. Many Tennessee residents have close family and friends living overseas, and what does that mean for estate planning? It means that you could potentially receive an inheritance from someone abroad, and that means that special taxes will apply.

Many people who are going to receive an inheritance -- or have received an inheritance -- from another country want to know what kind of taxes they'll be subjected to if they bring their inheritance back to the United States. Generally speaking, inheritances of property from foreign sources will not be subjected to an inheritance or gift tax. However, other kinds of taxes could apply.

When is an oral will acceptable in Tennessee

In the last blog post, we talked about holographic wills and when these may or may not be accepted by the court. Essentially, a holographic will relates to a will that's handwritten -- and it may or may not have witnesses. This week, we'll discuss the "noncupative will" -- which is a special kind of an oral will. As you can expect, an oral record is not the best for the purposes of clarity, nor is it the best for the purposes of withstanding challenges in court. Nevertheless, in select circumstances, it could be the only thing that a Tennessee court has to go on.

Here are the circumstances that generally must be present in order for a Tennessee court to certify an oral will:

  • The noncupative will must be made by a testator (a person who creates the will) who is imminently in peril.
  • The noncupative will only becomes valid when the testator dies from said peril.
  • The noncupative will must be spoken in front of two witnesses who do not benefit from the will.
  • The noncupative will should be transmitted into writing by one of the two witnesses either written by the witness him or herself, or by someone acting as the agent of the witness, within 30 days of death.
  • The transmitted noncupative will must be filed with the probate court within six months of the testator's death.
  • The noncupative will only functions for personal property that doesn't exceed $1,000. However, if the testator is active in the military during a time of war, then it will function up to a limit of $10,000.
  • A noncupative will cannot change or revoke the legal status of a written will.

What's a holographic will?

It sounds futuristic, like it would be a good thing, but a holographic will is not the kind of will that anybody wants. That's because challenging a holographic will is simple, and they are subject to being invalidated in court.

The term "holographic" when it's applied to wills means that no one was present to witness the signing of the document. In order for a will to be valid, a typed, hard-copy version of the will must be signed and dated by the testator while two adult witnesses are present. It's important that the witnesses are not heirs of the will.

A few notes on choosing the best executor for your estate

When it comes to choosing an executor, you should carefully consider your options. Being an executor requires a lot of responsibility, and depending on the complexity of your estate, it could require specialized financial and legal knowledge to carry out those responsibilities effectively.

Let's take a look at a few points you need to keep in mind when selecting who shall assume this responsibility on your behalf and the rest of your family's behalf.

When you need legal help, we are here for you.

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