To Draft a Will or Not to Draft a Will, That Is the Question

This article addresses why you should draft a Last Will and Testament, the legal requirements for a valid will under Tennessee law, and different provisions to consider when drafting a will. It is commonly said that only two things are certain in life. One of those things is taxes, and you probably already know what the other one is.

No one is required to have a will. A Last Will and Testament is designed to give legal protection to a person’s estate  before that person dies, and the content of a will goes beyond what applies by the default operation of the law. A legitimate will directs the Probate Court as to how a decedent’s estate should be closed according to the wishes of the deceased. Individuals without a will are termed to have died intestate. An intestate estate is distributed in accordance with Tennessee law.¹

People have different opinions as to whether or not to draft a will. Those that do draft a will may differ with regard to what provisions should be used and who should receive what dispensations. Some people put lots of thought into giving gifts through a will to relatives, friends, non-profits, schools, parks, or other organizations. Others simply wish to leave all of their possessions to their closest family members.  Creative thought can be put into a will to leave a person’s assets in many different ways after their death.

Arguments against creating a will could be that it is too difficult, that it takes too much thought, that you have to keep updating it, that the services of an estate planning attorney are too costly, or that the default rules are good enough. However, in many people’s opinion, the default rules may not be the appropriate disposition of their property. Arguments for creating a will are that it offers peace of mind and control over precisely what will happen with one’s assets. It also affords drafters a higher level of control over their estate, which could be used to incentivize the future behavior of others.

So, hypothetically, you decide to draft a Last Will and Testament. What’s next?

Understanding the Legal Requirements to Draft a Valid Will in Tennessee

Legal provisions governing Wills in Tennessee include:

• A person must be of sound mind and at least 18 years old to make a valid will in Tennessee.²
• Holographic wills are in the handwriting of the testator and require two witnesses to prove the handwriting was in fact that of the testator.^³
• A non-holographic will requires two disinterested witnesses. Disinterested here means the witnesses would not receive a personal or beneficial interest under the will.⁴
• There are requirements that apply to the signatures of the testator and the two witnesses.⁵
• Tennessee recognizes wills that were executed outside of Tennessee as long as the will complies with the law of the place of the testator’s domicile at the time of its execution.⁶
• There are actions a testator can take to revoke a will.⁷

For a deeper discussion of the law governing Wills in Tennessee, the Tennessee Court of Appeals recently decided a case that provides a wide-ranging discussion of the legal requirements of wills in Tennessee. See In re Estate of Starkey, 556 S.W.3d 811, 813 (Tenn. Ct. App. 2018)(holding Tennessee law has continued to recognize the common law doctrine that fraud will not defeat an attempt to revoke a will).

Here are several questions to ponder when considering the drafting of a will:

• What do you want to  include in your will?
• Who do you want to be the executor of your estate? You could consider naming secondary or tertiary executors if the first named are not available.
• Do you have any special or collectible items that you want to leave to someone who will appreciate them?
• Do you have items such as bank accounts or firearms that need to be to listed in the will, including account numbers or serial numbers?
• Do you wish to leave anything to extended family, friends, organizations, or universities that would not otherwise inherit anything from your estate?
• Do you wish to express how your remains should be disposed of?
• Do you want to include your preference as to  who should be named guardian of any children for whom you are currently responsible?
• Will there be any conditions attached to your property?  If for example, you wish to provide a fund for your children that can only be spent for living necessities and then distributed to them at a specified age, perhaps you should consider a trust instead of a standard will.
• Will you use payable on death certificates for your bank accounts so that they may avoid probate?

As you can see, there are many factors to consider before drafting a will. Making the determination to draft a will, and if you choose to do so, deciding what provisions to include is a highly personal matter. I encourage you to think deeply about what you want to accomplish and then  choose a qualified estate planning attorney who will listen carefully and take the time to discuss your priorities.

If you feel that a Cole Law Group estate planning attorney in Nashville may be the right fit for you, I invite you to call us at (615) 490-6020 today to discuss a will, trust or probate matter. Our firm assists clients throughout Middle Tennessee and your privacy is always respected.

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¹ T.C.A. § 31-2-104 tilted Share of surviving spouse and heirs describes who will inherit in an intestate estate.

² T.C.A. § 32-1-102.

³ T.C.A. § 32-1-105.

⁴ T.C.A. § 32-1-103.

⁵ T.C.A. § 32-1-104.

⁶ T.C.A. § 32-1-107.

⁷ T.C.A. § 32-1-201.