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VOL. 133 | NO. 172 | Thursday, August 30, 2018

How Useful Is a Last Will and Testament?

By JENNIFER L. SNEED, Special to The Daily News

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Earlier this month, news outlets reported that Aretha Franklin, a Memphis native, died without a will. That fact seems important, but what good does a will actually serve?

In basic estate planning, there are three core documents that enable people of both modest and massive means to protect and convey their health care and financial desires during their incapacitation or death – the durable general power of attorney, the durable health care power of attorney, and the last will and testament.

I explained the benefits of the former two in June’s column and July’s column, respectively. In this article, I will introduce the final, most recognizable member of the core estate planning trio – the last will and testament.

A last will and testament, commonly referred to simply as a “will,” is an individual’s post-death distribution plan for their property. A will is generally a written document, though there are limited circumstances in which it may be verbal. A will may be handwritten, known as a “holographic” will, or professionally drafted, and it may be used to dispose of nearly anything in which the will-maker – the “testator” – holds an ownership interest.

Note, however, that a will is not legally effective until it is “probated” or examined and accepted by a court, and the individuals named in the will are not recipients, or “beneficiaries,” until after the testator dies.

Any legally competent adult can complete a will, provided that at the time of signing, they are aware of who they are, what assets they own, and to whom they want to give those assets. In Tennessee, a will is generally valid if it complies with (1) Tennessee law, (2) the law of the state it was drafted in, or (3) the law of the state where the testator legally resided when they died.

The primary benefit of having a will is the ability to direct the distribution of your property and avoid the laws of “intestate succession,” Tennessee’s statutory default asset distribution plan. Intestate succession exists for individuals who die “intestate,” or without a will. Under intestate succession, anything you own that does not otherwise have a valid beneficiary (such as under a life insurance policy), passes to your legal next of kin. For example, if, at the time of your death, you are intestate and unmarried with no living descendants (e.g., children, grandchildren, etc.), your assets automatically pass equally to your living parents.

Wills are used to transfer not only tangible property, like jewelry and vehicles, but also real estate, money and ownership interests in items such as stock. Also, while most will beneficiaries are humans, testators may also name trusts, businesses, charities and even animals as beneficiaries. Wills, therefore, are particularly handy when naming nonrelatives as beneficiaries, limiting the relatives who benefit, or leaving assets to nonhumans.

A will may be drafted, amended or revoked at any time by a legally competent testator. However, because a will is a legal document, it is wise to employ an experienced attorney when making changes to your will to best ensure that it complies with Tennessee law, that it accounts for the appropriate contingencies, and that, as testator, you are knowingly, accurately and independently expressing your wishes. Many law firms also keep a will safe available for clients to safely store their original will.

As the most widely recognized estate planning tool, a will can be used independently or in conjunction with powers of attorney as a very efficient, cost-effective means of preparing for the future. But what happens if you die without a will? In September’s article, I will discuss what may happen to your assets if you die intestate.

These articles are purely informational and do not constitute legal advice. As with all legal issues, please consult your attorney when determining your estate planning needs.

Jennifer L. Sneed is an attorney with Bourland, Heflin, Alvarez, Minor & Matthews PLC.

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