Wills and Estate Planning

It is essential to properly plan ahead for the future, especially your estate. McDonald, Levy & Taylor can help in this often difficult and confusing process by offering plans that give you the flexibility you want, while still making the process as simple as possible.
Wills and Trusts do more than distribute your assets and pay your debts at your death. They also protect the well being of surviving loved ones and help to ensure that your final wishes are carried out in a suitable manner. It is essential for everyone to prepare by establishing an estate plan, regardless of financial situation, age or health.
Tennessee recognizes three kinds of Wills: traditional Wills which are type written, witnessed, properly attested, and notarized; holographic Wills which are handwritten Wills; and nuncupative Wills which are oral Wills.
Of course, Wills can include many other terms, including specific instructions about what to do with special items of personalty, such as jewelry, artwork, or family heirlooms. Wills can also create life estates in property. Trusts can be included in Wills and such are considered Testamentary Trusts.Click Here to view our video(s) on Preparing a Will.
Anyone age 18 or over can make a will so long as he or she is of sound mind. A person making the will is called a Testator (man) or Testatrix (woman). Most Wills contain basic provisions. These basics include:
  • Identifying family members;
  • A direction to pay taxes and debts;
  • Directions about what to do with the personal belongings of the testator;
  • Directions about what to do with all the other property of the testator;
  • Appointment of a person to manage the estate and carry out the instructions of the testator (this person is called the Executor (man), Executrix (woman) or sometimes referred to as the Personal Representative;
  • The powers of the Executor;
  • Provisions for naming the guardian of minor children;
  • Provisions dealing with whether the person managing the estate must post
    bond, or make accountings and other reports to the probate court; and
  • An affidavit of attesting witnesses.

 

Of course, Wills can include many other terms, including specific instructions about what to do with special items of personalty, such as jewelry, artwork, or family heirlooms. Wills can also create life estates in property. Trusts can be included in Wills and such are considered Testamentary Trusts.
Importantly, Wills are not valid and enforceable until the testator dies. They are revocable. Sometimes a Will is revoked by operation of law or by an act of the Testator. Marriage and divorce, for example, will revoke a Will by law. A Testator may revoke a Will by defacing it in the presence of witnesses, among other methods. But importantly, a Will is not a legally binding document until the Testator dies. If someone is named in a Will, he or she has only an expectation of receiving property at the death of the Testator. It is not a right. It is only an expectation.
Type written Wills must be properly drafted and witnessed to be effective. In Tennessee, there must be at least two witnesses to the signing of a will. Both witnesses must be in the presence of the Testator and within the sight and hearing of the Testator and each other. Typically we prepare an affidavit of attesting witnesses which can be used to start probate proceedings easily and quickly without going to the effort of trying to locate witnesses and bring them to court.
Wills typically do not control the passing of property that has a beneficiary or pay on death designation. Assets with pay on death or beneficiary designations or joint owners, such as a bank account or an IRA, will pass according to the contract between the account owner and the financial institution holding the funds. Life insurance, also, typically passes according to a beneficiary designation. It is important that you check your beneficiary designations to be sure they provide for your intention because your Will will not control those assets. The Will does not control passing of real estate that is deeded with a joint owner (not a tenant in common), such as a deed to husband and wife, or a deed reserving a life estate. These types of deeds create ownership that vests immediately upon death and the Will does not control.
We suggest that you maintain your Will in a safe place and that you tell your Executor where it is located.
At McDonald, Levy & Taylor we make Wills tailored to your specific needs. We strive to fully understand your objectives and to offer you options in planning to most effectively accomplish your
goals. If you already have a Will, we can review it, particularly if you had it prepared in another state. If changes are desired, sometimes these can be accomplished by doing an amendment to Your Will called a Codicil.

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