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In my prior two blogs, I discussed the witness requirements in Tennessee for a traditional, typed out will, and a nuncupative will. Now, let us turn our attention to holographic wills.
Holographic wills are wills that are handwritten. Tennessee does recognize holographic wills that meet the statutory requirements (not all states recognize them). The statute governing the requirements for a holographic will in Tennessee is very short. T.C.A. § 32-1-105 states the following: “No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be provided by two (2) witnesses.” In sum, to have a valid holographic will, the testator must sign the will and all material provisions must be in the handwriting of the testator. When the will is probated, the probate attorney will then have to obtain the sworn statement of two witnesses who can verify that the handwriting is that of the testator. There are two areas where I often see an attempt at a holographic will fail to meet the statutory requirements. First, all material provisions are not in the handwriting of the testator. This happens a lot with “fill in the blank” type of wills. If most of the will is in the testator’s handwriting but a certain material provision is typed, that is not a valid holographic will. Second, the testator didn’t sign the will. Family members will sometimes bring in a handwritten list that their loved one had made stating things like, “I leave my diamond ring to my daughter,” but unless that list is signed it has no chance of being a holographic will.
Based on this blog and the previous two, you can probably see it is not a good idea to try to distribute your assets without the aid of an attorney. I am truly saddened for the family when I see an attempt at a will that is simply not valid in Tennessee. In those situations, the way that the property must be passed under Tennessee law is often obviously not how the deceased person wished it be distributed.
We would love to have a commitment-free conversation with you to discuss how we might be able to serve you in our estate planning practice. Whether you could benefit from a simple Will, powers of attorney, or some type of trust, we are here to walk you through the process.
In a prior post, we discussed the witness requirements in Tennessee for a traditional, typed-out will. Now we will discuss the requirements for nuncupative, also known as oral wills, and holographic wills.
What are Nuncupative Wills?
A nuncupative will is an oral will made by someone in “imminent peril of death;” these wills “shall be valid only if the testator died as a result of the impending peril.” (See T.C.A. § 32-1-106.) This is common among people who find themselves close to passing away without a will or with an outdated will.
When someone has a will they consider outdated, they may try to update it with a nuncupative will. This doesn’t always work because of the court’s inability to trust the dying’s state of mind.
What are the Requirements for a Valid Nuncupative Will?
Now, we know what you’re thinking: “Oral wills are valid?” Yes, under certain circumstances. T.C.A. § 32-1-106 explains that it is only valid if:
The testator makes the declaration before two disinterested witnesses.
The wishes are reduced to writing under the direction of one of the witnesses within thirty days of the declaration.
The will is “submitted for probate within six months after the death of the testator.”
However, even if all of these requirements are met, “a nuncupative will is only valid to dispense of personal property and only valid for personal property not exceeding one thousand dollars in the aggregate.” The only exception to this is when the dollar amount is increased to ten thousand dollars if used by a person in active military service in a time of war.
Should You Use a Nuncupative Will?
As you can guess, it is not a good idea to count on using oral statements to distribute your assets. Usually, they are invalid and your estate would pass according to Tennessee’s laws of intestacy.
Intestacy is the law that applies when someone dies without a will. Nuncupative wills rarely make it through the probate process and if they do, they usually distribute only a small portion of a person’s estate.
Contact Our Estate Planning Attorneys
Plan ahead and have one of our attorneys discuss your estate planning wishes so that we can put them in a binding, legal document and secure your peace of mind about the future. Planning your estate can help prevent future difficulties for your family. Contact us today for help or call us at 615-444-2345.
One of the main issues that I see with a Last Will and Testament people can create online or not in front of an attorney is that they don’t meet the witness requirements of Tennessee law. In Tennessee, if you don’t meet the witness requirements for your will, your will is not valid.
This can mean that all the work you’ve put into this document can become meaningless in the long run. If you were to pass away before fixing this, your estate would fall under the laws of intestacy, the laws that apply to an estate when someone dies without a will. Even if the handwritten will is accurate to your best wishes, the court cannot use or accept its terms. This is definitely something I want you to avoid.
What are Tennessee’s Witness Requirements?
So what are these witness requirements? T.C.A. § 32-1-104 provides that a will, other than a holographic or nuncupative will, must be signed by the testator (the person making the will) and two witnesses. There are specific requirements within the code that spell out what the testator must signify to the witnesses in this process.
T.C.A. § 32-1-103 further clarifies that the witnesses cannot be “interested” persons. This pertains to anyone with an interest in the testator’s estate. This keeps most family members and friends from being testators. Not only must the witnesses and testator sign the will, but they must all do so in the presence of each other. If one signs the will without the other being present, the will cannot be accepted. Tennessee requires strict compliance with these rules. If you do not meet any of these requirements, the will is invalid.
The Tennessee legislature recently amended the witness laws to allow signatures on a specific type of affidavit that is often attached to the will to count as the witness signature requirement. However, this is a very minor exception because the following must be true about that particular will and affidavit:
The affidavit meets the witness requirements listed before.
The will was executed prior to July 1, 2016.
As you can tell, this minor exception does not apply to most wills. This will not apply to any new wills created on July 2, 2016, or afterward.
Follow Tressler & Associates to Make Sure Your Will is Legal
It is important to remember that these requirements apply only to traditional, type-written wills. Stay tuned for more blog posts from Tressler & Associates where we will discuss all of the requirements involved for making a nuncupative or holographic will valid.
The last thing anyone wants is to believe that an estate plan isn’t secure. Sadly, a will that you create on your own can be invalid due to one technical detail that you didn’t anticipate. Should Tressler & Associates, PLLC, have the opportunity to prepare your will, we will take care to ensure that it meets all witness requirements and even provide witnesses for you at the signing.
We have seen many situations where a real estate contract is signed just before something goes wrong. Many discover that the person who signed the contract to sell a property is not the same person who holds the title. Once we begin asking questions, we soon find out that the title holder has passed away. The person selling the property is actually the spouse, child, or executor. This causes whole real estate transactions to fall apart all the time.
Can You Save Your Real Estate Transactions?
What do you do then? Well, it depends. As generic as it may sound, this answer greatly applies to this situation. There are many factors that may play into the process of closing on that contract. For example, here are a few questions to ask the seller:
Did the decedent have a Will?
If not, who were the decedent’s heirs? Have any heirs predeceased the decedent?
Was the decedent fifty-five years of age or older?
Was the decedent married?
Have any probate proceedings been started?
The list goes on. However, the good news is, once we can get these answers, we can come up with a comprehensive plan for you. This way you can come as close as possible to the constraints of your original contract. You will want someone who has handled many of these transactions to be advising you on this important sale.
Contact Tressler & Associates for Help
Make sure the property you’re trying to purchase is actually owned by the seller. If you find out they don’t, we can help you figure out why and help you get the property you want. If you’re trying to sell property left to you by a loved one who passed away, we can help. Let us make sure you have proof of ownership and can sell the property without any issues.
Whether you have a signed contract on real estate or not, contact us. We can walk you through the process that would apply to your specific scenario.
I recently saw this post on Facebook and I wanted to share it. This is something as attorneys we see too often and I thought it a worthwhile reminder…
“I cannot stress enough, how important it is to have the conversation with your family about your final wishes. Have a will in place, organize your financial documents for your loved ones, write down simple wishes such as items to be given to specific members of the family or just details of your funeral wishes. As times, situations change, keep these documents updated. It’s such an extremely stressful time for everyone and even more so when some of these items are left unsaid. It’s very hard to take emotions out of the situation when there are so many emotional details to attend to after someone’s passing. This has been the hardest past two weeks of my life; last night and today just topped it off… but I’m sure there are more to come. I’ll get through them one step at a time.
Please, I beg you; friends and family – have that difficult conversation. You and your loved ones will be grateful that you did”
We are all procrastinators to some degree. Some of us may put small matters off for a few extra days, like grocery shopping or mowing the lawn, while others go by the old saying, why do today what I can put off till next year. This is fun to joke about; however, when it comes to the legal consequences of procrastination, it can be devastating.
In our law firm we see so many lives changed forever by someone’s procrastination. We hear on a daily basis, “if dad, mom, a spouse, or a business partner, etc., would not have put this off then we would not be in this horrible predicament. It is so true in almost any area of the law. People love to put off making a Last Will and Testament, signing a Power of Attorney, having important business documents drafted, or pursuing a case where someone has legally wronged them.
Legal procrastination can cause family members unbelievable amounts of additional stress and expense in a very challenging time of their lives. It is not uncommon to see people inadvertently left out of an inheritance or see families fighting after a loved one’s death that could have been avoided if it were not for the procrastination of the deceased. Also, we see people forced to get conservatorships and guardianships in the court room – something that may have been avoided by the more timely hiring of an attorney. Almost daily, we see what would be valid legal claims that are barred by the statute of limitations because the individual did not seek an attorney in time. When it comes to washing your car or getting a haircut, please feel free to procrastinate, but for important legal matters please contact an attorney today and take the appropriate legal steps to Secure Your Peace of Mind and protect your family.
Keep in mind…this service can also be taken advantage of by real estate agents, lenders, and other vendors who are all valuable parts of the closing process.
We look forward to securing your peace of mind in new ways!
The attorneys at Tressler & Associates regularly work with clients who own out-of-state real estate. Owning real estate outside of Tennessee drastically affects estate planning, so it’s always something we ask new clients if they have.
There are several laws to consider when clients own real estate outside of Tennessee. You have to contend with Tennessee’s and the other state’s estate planning laws. You should always make sure your estate planning attorney knows every state in which you hold property.
What is Out-of-State Real Estate?
“Out-of-state real estate” includes everything from a beach mansion in California to a small, empty plot of land in the Midwest. Did you know that without proper planning, your heirs will have to do a probate proceeding in Tennessee and any other state you own property in? Real estate outside of Tennessee doesn’t transfer through Tennessee probate proceedings.
Thankfully, there is an easy way to prevent this hassle. The most common way to avoid multiple probate proceedings is by placing the property in a Trust. By using a simple Trust, your family can usually avoid probate proceedings. Sometimes, the laws of other states don’t allow it.
Why Do You Need An Estate Planning Attorney?
At Tressler & Associates, PLLC, we can build a Trust that suits your needs. We can also draft the deed necessary to place your Tennessee real estate into that Trust. Then, we will work with attorneys in the other state to transfer the rest of your real estate into the Trust. As simple as this process is, it is rarely done. Without it, you risk leaving your heirs with a mess on their hands.
Even if you do not currently own a piece of real estate outside of Tennessee, consider this technique. You can start creating a Trust in advance of a purchase. We can build the Trust so that it is ready to receive that second piece of real estate whenever you make the purchase or not.
One of our goals is to make the transition of assets to your heirs as seamless as possible.
Contact the Estate Planning Attorneys at Tressler & Associates
For assistance with passing down out-of-state real estate, our estate planning attorney at Tressler & Associates has the experience to help you. This is a complicated process for anyone without the necessary experience to complete it. We’ll make sure that after you pass, your family will not have to deal with multiple probate proceedings. Contact us for help today.
There are many misconceptions among people regarding estate planning. For example, your spouse with whom you share children does not automatically inherit your entire estate if you pass away. This is an awfully big surprise to get after your partner passes away. Surely, you can see why that is a huge reason in itself to have an estate plan that has all your beneficiaries settled.
What are the Two Types of Beneficiaries?
Another common misunderstanding is in regards to the order of priority for named beneficiaries and the beneficiaries listed in a Will. Let us explain the difference between the two types of beneficiaries.
By “named beneficiary,” we are referring to someone that you explicitly place as a beneficiary on a specific asset. For example, a beneficiary on a life insurance policy or an IRA is a named beneficiary. Whereas, more generically, a beneficiary in a Will is exactly what it sounds like. It is a person named in your Will to inherit a specific asset or assets.
Where Wills Can Go Wrong
So here’s the issue: What happens when you have the named beneficiary listed as one person and the beneficiary in your Will for that same asset is listed as someone else? In short: named beneficiaries trump wills. For example, the named beneficiary you list on your life insurance policy will trump the person you leave your life insurance policy to in your Will.
It’s easy to see why this is incredibly important. You can obtain a false sense of security when you feel your Will is perfect, but your named beneficiaries are not actually accurate. At Tressler & Associates, we want to make sure that your entire estate transfers exactly as you intend and this is an example of a common mistake that we work to prevent in your plan.
Contact the Estate Planning Attorneys at Tressler & Associates
Plan your estate with an experienced attorney so that you can help prevent future difficulties for your family. Contact us or call at 615.444.2345.
Unfortunately, phishing scams have become common place. Most email users are rightfully leery of an email pertaining to wiring information. However, in the rush of a closing, it is possible to fall prey to one recent scam.
WARNING!
The Federal Trade Commission and the National Association of Realtors have both issued warnings regarding the recent email and wire transfer scam concerning closing costs. In the course of a normal transaction, a buyer will often wire his or her funds to us prior to closing and we will disburse the funds according to the needs of the transaction.
In this particular scam, hackers pose as real estate agents, title company representatives, or another professional and send an email to the buyer stating that there has been a “last minute change” to the wiring information and the funds are to be sent to a different account. Because “last minute changes” can be common place in a closing, some buyers will not question this change and send the funds (sometimes hundreds of thousands of dollars) straight into the account of the hacker.
Anytime you receiving wiring instructions from us or any other company, please feel free to call and confirm those instructions. You can also call to confirm that we have received the wire after it has been sent. We want to be sure that your closing runs smoothly and the funds are transferred to the appropriate parties and out of the hands of scammers.
CONTACT US
If have a question or concern please contact us about any communication you have received asking for payment. Or any other legal matter feel free to email us or call.
