It’s a common misconception that estate planning is only appropriate for the elderly and those who have amassed great wealth – this is not true. Believe it or not, even if you have not inherited or accumulated significant wealth, you have probably an estate – it is comprised of everything you own— your car, home, other real estate, checking and savings accounts, investments, life insurance, furniture, personal possessions. No matter how large or how modest, most everyone has an estate and when death happens—and it is a “when” not an “if”— you probably want to control how those things are given to the people or organizations you care most about. To ensure your wishes are carried out, you need to provide instructions stating whom you want to receive something of yours, what you want them to receive, and when they are to receive it. You will, of course, want this to happen with the least amount paid in taxes, legal fees, and court costs.
There are significant issues that only a will can clarify. One of the biggest is who will take care of the people you love, and how? You may have told your best friend that she will be the guardian of your children if you and your spouse die in a plane crash, but unless you spelled out your wish in a will, there is no guarantee this will happen. If both parents die, it will be up to the state to decide, and they will chose based on family. This raises many questions such as: which parents would you want to raise your children — yours or your spouse’s? Which sibling, do you care if your children go to your spouse’s siblings with whom you may not have had a great relationship or to the financially strapped but loving relative? If you have minor children, ensuring that your loved ones are provided for is especially important.
All adults who are mentally capable should have some form of an estate plan, which may be as simple as an advanced directive (to designate a health care proxies and medical directives, i.e. continued life-support or removal of all artificial means of living) or maybe just a last will and testament. An estate planning attorney will work with you to assess your estate planning needs, create the documents which form the foundation of your plans and then update those documents as necessary. Estate planning is an on-going process and should be reviewed and updated as the law, as well as your family and financial situations change over time.
If you are wondering what will happen to your assets in the event that you die without making provisions for your loves ones, here excerpts from a few selected Tennessee statutes with the rules of intestate succession:
T. C. A. § 31-2-104. Surviving spouse; heirs.
(a) The intestate share of the surviving spouse is:
(1) If there is no surviving issue of the decedent, the entire intestate estate; or
(2) If there are surviving issue of the decedent, either one-third ( ⅓ ) or a child’s share of the entire intestate estate, whichever is greater.
(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:
(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
(2) If there is no surviving issue, to the decedent’s parent or parents equally;
(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or
(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
If representation is called for by this title, such representation shall be per stirpes.
[Per stirpes (/pɜr ˈstɜrpiːz/; “by branch”) is a legal term in Latin. An estate of a decedent is distributed per stirpes if each branch of the family is to receive an equal share of an estate.]
If there is no taker under the provisions of this chapter, the intestate estate shall escheat to the state of Tennessee under the provisions of chapter 6 of this title.
For a full listing of Tennessee’s law regarding Intestate Succession, click on the link at the top of the page [compilation of Tennessee statutes] and click next to Title 31 Descent And Distribution, Chapter 2, Intestate Succession.
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